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A 


DICTIONARY OF LAW 


B. J. McKINNEY conTAInnNG 


DEFINITIONS OF THE TERMS AND PHRASES OF AMER- 
ICAN AND ENGLISH JORISPRUDENCE, 
ANCIENT AND MODERN 


INCLUDING 


THE PRINCIPAL TERMS OF INTERNATIONAL, CONSTITUTIONAL. AND COM 
MERCIAL LAW; WITH A COLLECTION OF LEGAL MAXIMS AND 
NUMEROUS SELECT TITLES FROM THE CIVIL LAW 
AND OTHER FOREIGN SYSTEMS 


By Henry CaAmpspetyt Biack, M. A. 


Aathor of Treutiazes vu “JUvuMuNts,” * Tax-Tiries,” “CONSTITUTIONAL PROHIBITIONS, ™ etc. 


ST. PAUL, MINN. 
WEST PUBLISHING CO. 
189gI 


Corrnient, 1891, 


BY 


WEST PUBLISHING COMPANY. 


PREPAG.S 


Tue dictionary now offered to the profession is the result of the author’s endeavor 
to prepare a concise and yet comprehensive book of definitions of the terms, phrases, 
and maxims used in American and English law and necessary to be understood by 
the working lawyer and judge, as well as those important to the student of legal 
history or comparative jurisprudence. It does not purport to be an epitome or com- 
pilation of the body of the law. It does not invade the province of the text-books, 
nor attempt to supersede the institutional writings. Nor does it trench upon the 
field of the English dictionary, although vernacular words and phrases, so far as 
construed by the courts, are not excluded from its pages. Neither is the book en- 
eyclopedic in its character. It is chiefly required in a dictionary that it should be 
comprehensive. Its value is impaired if any single word that may reasonably be 
sought between its covers is not found there. But this comprehensiveness is possible 
(within the compass of a single volume) only on condition that whatever is foreign 
to the true function of a lexicon be rigidly excluded. The work must therefore con- 
tain nothing but the legitimate matter of a dictionary, or else it cannot include all 
the necessary terms. This purpose has been kept constantly in view in the prepara- 
tion of the present work. Of the most esteemed law dictionaries now in use, each 
will be found to contain a very considerable number of words not defined in any 
other. None is quite comprehensive in itself. The author has made it his aim to 
include ail these terms and phrases here, together with some not elsewhere defined. 

For the convenience of those who desire to study the law in its historical develop- 
ment, as well as in its relations to political and social philosophy, place has been 
found for numerous titles of the old English law, and words used in old European 
and feudal law, and for the principal terminology of the Roman law. And in view 
of the modern interest in comparative jurisprudence and similar studies, it has 
seemed necessary to introduce a considerable vocabulary from the civil, canon, French, 
Spanish, Scotch, and Mexican law and other foreign systems. In order to further 
adapt the work to the advantage and convenience of all classes of users, many terms 
of politica] or public law are here defined, and such as are employed in trade, bank- 
ing, and commerce, as also the principal phraseology of international and maritime 
Jaw and forensic medicine. There have also been included numerous words taken 
from the vernacular, which, in consequence of their interpretation by the courts or 
in statutes, have acquired a quasi-technical meaning, or which, being Irequently used 
in laws or private documents, have often been referred to the courts for construction. 
But the main body of the work is given to the definition of the technical terms and 
phrases used in modern American and English jurisprudence. 

In searching for definitions suitable to be incorporated in the work, the author 
has carefully examined the codes, and the compiled or revised statutes, of the vari- 
ous states, and irom these sources much valuable matter has been obtained. The 
‘definitions thus enacted by law are for the most part terse, practical, and of course au- 
thoritative. Most, if not all, of such statutory interpretations of words and phrases 
will be found under their appropriate titles. Due prominence has also been given 
to definitions formulated by the appellate courts and embodied in the reports. Many 


(iii) 


iv PREFACE, 


of these judicial definitions have been literally copied and adopted as the author's 
definition of the particular term, of course with a proper reference. But as the con- 
stant aim has been to present a definition at once concise, comprehensive, accurate, 
and lucid, he has not felt bound to copy the language of the courts in any instance 
where, in his judgment, a better definition could be found in treatises of acknowl- 
edged authority, or could be tramed by adaptation or re-arrangement. But many 
judicial interpretations have been added in the way of supplementary matter to the 
various titles. 

The more important of the synonyms occurring in leeal phraseology have been 
carefully discriminated, In some cases, it has only been necessary to point out the 
correct and incorrect uses of these pairs and groups of words. In other cases, the. 
distinctions were found to be delicate or obscure, and a more minute analysis was 
required. 

A complete collection of legal maxims has also been included, comprehending as 
well those in English and Law Irench as those expressed in the Latin. These have 
not been grouped in one body, but distributed in their proper alphabetical order 
through the book. ‘This is believed to be the more convenient arrangement. 

It remains to mention the sources from which the definitions herein contained 
have been principally derived. For the terms appertaining to old and middle En- 
glish law and the feudal polity, recourse has been had freely to the older English law 
dictionaries, (such as those of Cowell, Spelman, Blount, Jacob, Cunningham, Whishaw, 
Skene, Tomlins, and the “Termes de Ja Ley,”) as also to the writings of Bracton, Lit- 
tleton, Coke, and the other sages of the early law. The authorities principally relied 
on for the terms of the Roman and modern civil Jaw are the dictionaries of Calvinus, 
Scheller, and Vicat, (with many valuable suggestions from Brown and Burrill,) and 
the works of such authors as Mackeldey, Hunter, Browne, Hallifax, Wolff, and 
Maine, besides constant reference to Gaius and the Corpus Juris Civilis. In preparing: 
the terms and phrases of French, Spanish, and Scotch law, much assistance has 
been derived from the treatises of Pothier, Merlin, Toullier, Schmidt, Argles, Hall, 
White, and others, the commentaries of Erskine and Bell, and the dictionaries of 
Dalloz, Bell, and Escriche. For the great body of terms used in modern English 
and Amevican law; the author, besides searching the codes and statutes and the re- 
ports, as already mentioned, has consuited the institutional writings of Blackstone, 
Kent, and Bouvier, and a very great number of text-books on special topics of the- 
law. An examination has also been made of the recent linglish law dictionaries of 
Wharton, Sweet, Brown, and Mozley & Whitley, and of the American lexicogra- 
phers, Abbott, Anderson, Bouvier, Burrill, and Rapalje & Lawrence. In each 
case where aid is directly levied from these sources, a suitable acknowledgment hag 
been made. This list of authorities is by no means exhaustive, nor does it make 
mention of the many cases in which the definition had to be written entirely de novo; 
but it will suffice to show the general direction and scope of the author’s researches.. 

BG. B 


WasHineron, D. ©., August 1, 1891. 


_ Riehard I 


A TABLE 


OF 


Peli ls REGNAL 


Lengih 
of reign. 


Soveretzn. Accession. 
WIAD Leo. ecensese< Och 4, 1068 
PUTRI EE os sake veces HOD ts Con UST. ca ceiawkt 
DENN)... due -sevcseor Ape 0; LI... oe 
MECDHEN) «vss ewien soneies alec, 26, 1185 ,. 
Penryn. sean weows en. Lec. 19) Llpd... 
veseeses HOt. 28, 1189... 

SIC} y le See ACR RAD RA May 27, 1199...... 

pases OC, 25, 1216 

Pidavartei een istesuva siosise oN OVS 20) 120235, canned 
Edward IL Whe LM tec = sik e wee 
Fidiwardililpiecseseases am. 25, 1626... 2.06: 
Richard DE... saswinacees AUG G4, VERT. 60001 
Hebry Dy ac... te rece meeee pie aus, LOOM. cn ceed 
Henty Vi... we; coasewesenred 28) 141B: <5: 


su coccsws MATON4, I401.. 5.5.28 
esieenss:s ADMD) IAGO van leale 
Richard UD. ..ccsscceses JUNG 26, 1403. .0500. 


YEARS. 


Soverelzn. Accession. 
Henry VII....... eaee.-- Aug, 22, 1485 
Henry VIIL... ov or tepmllee, 1EOR)).. <ajauees 
Edward VI..............dan. 28, 1547 
EES. 2 vos same ale oy OG; LOD Grse:s we sie 6 
Elizabeth ...Nov. 17, 1558 
BPAOR) Vcc wanlen cae = eves» March 24, 1608... .. 
WOTIER Tey waen cs « wenn UATCR 0, Loess ne vis 
The Commonwealth.... Jan. 30, 1649........ 
CHATIGE rs Ai sleicctvcecc tl By 2a, L000 
SAMICK LD. 5 kes cxe as Beloit SHEDS Oy) LOOD ns racdvels 
William and Mary ......Feb. 18, 1699...,... 
BUNA ain s saa eecies tei¢-cion eMMATCMG, 1iUAs» vee 
George I....... 


Ravan obawe ox Gb: OOP 2100 ateree 
Pe EU Gis gl boy 2k eae 

WWHAOV INV nieces see aUlilO co, 1500s. cesses t 
Victoria. . Renee Kee eee UDG 20, TO teaniecwee » 


iy" 


BePLIOGRAPHICAL LIST 


OF THE 


PRINCIPAL LAW DICTIONARIES « 


IN 


ENGLISIY AND FOREIGN LANGUAGES. 


ABBOTT, Benj. Vaughan. Dictionary of 
terms and phrases used in American 
or English Jurisprudence. 2 vols. 8vo. 
Boston, 1879. 


ADAMS, Henry C. A juridical glossary; 
being an exhaustive compilation of the 
most celebrated maxims, aphorisms, 
doctrines, precepts, technical phrases 
and terms employed in the Roman, 
Civil, Feudal, Canon, and Common 
Law, and quoted in the standard ele- 
mentary works and reports of the 
British and American courts. Vol. 1, 
Atoll. 8vo. Albany, 1886. 


ANDERSON, William C. A dictionary of 
law, consisting of judicial definitions 
and explanations of words, phrases, 
and maxims, and an exposition of the 
principles of law; comprising a dic- 
tionary and compendium of American 
and English jurisprudence. 1 vol. 8vo. 
Chicago, 1889. 


BACON, Francis, Lord. The maxims of 
the law. [Printed in Bacon's Law 
Tracts, 1 vol. 12mo. London, 1737.] 


BADEN, Gustav Ludvig. Forsog til et 
dansk-norsk juridisk ord- og sag-leksi- 
kon. lvol. l6mo. Odense, 1814. 


BELL, William. A dictionary and digest 
of the law of Scotland, with short ex- 
planations of the most ordinary En- 
glish law terms, 1 vol. 8vo. Hdin- 
burgh, 1861. 


BIRET, Aimé Charles Louis Modeste. 
Vocabulaire des Cing Codes, ou defini- 


tions simplilices des termes de droit et | ——, Same. 


(vil) 


de jurisprudence exprimés dans ces 
codes, 1 vol. 8vo. Paris, 1826. 


| BLOUNT, Thomas. A law dictionary and 

glossary, interpreting such difficult 
and obscure words and terms as are 
found either in our common or statute, 
aucient or modern, laws. 3d Edn. 1 
vol folio. London, 1717. 


BOUSQUET, J. Nouveau dictionaire de 


droit. 2d Edn. 1 vol. 4to. Paris, 
1847. 
BOUVIER, John. A law dictionary adapt- 


ed to the constitution and laws of the 
United States of America and of the 
several states of the American Union, 
with references to the civil and other 
systems of foreign law. Ist Edn. 2 
vols. 8vo. Philadelphia, 1839. 

—, Same. 14th Edn, 2 vols. Svo. Phila- 
delphia, 1882. 


BRILLON, Pierre Jacques. Nouveau 
dictionaire civil et canonique de droit 
et de pratique. 1 vol. 4to. Paris, 
1707. 


BRISSONIUS, Barnabas. De verborum 
que ad jus civile pertinent significa- 
tione. AstEdn,. lvol.folio. Leyden, 
1559. [Other editions, 1578, 1683, 
1697, 1721.] 

. same. 6th Edn. 
cius. 1 vol. folio. 
gicae, 1743. 


BROOM, Herbert. A selection of legal 
maxims, classified and illustrated. 2d 
Edn. I vol. 8vo. London, 1848. 


8th Edn. 


By J. G. Heinec- 
Halae Magdebur- 


M 


Fili 


BROWN, Archibald, <A new law diction- 
ary and institute of the whole law, for 
the use of students, the legal profes- 
sion, and the public. 1 yol. Svo. 
London, 1874. 


—, Same. American edition, by A. P. 
Sprague. 1 vol. 8vo. Albany, 1875. 


BURN, Richard and John. <A new law 
dictionary, intended for general use 
as well as for gentlemen of the profes- 
sion, 2Z vols. 8vo. London, 1792. 


BURRILL, Alexander M. A new law 
dictionary and glossury, containing 
full definitions of the principal terms 
of the common and civil law, together 
with translations and explanations of 
the various technical phrases in differ- 
ent Janguages occurring in the ancient 
and modern reports and standard trea- 
tises; embracing also all the principal | 
common and civil law maxims. Ist ! 


Edn. 2 vols.$vo. New York, 1850. | 
—, Same. 2d Edn, 


New 
York, 1867. 


2 vols. Byo. 


CALVINUS, (or Kahl,) John. Lexicon 
juridicum juris Cwsarei, simul et ca- 
noni¢i, feudalis, item, civilis, erimina- 
lis, theoretici ac practici, et in schola et 
in foro usitatarum. 1 vol. folio. ——, 
1669. 


COWELL, John. Nomothetes: The In- 
terpreter, containing the genuine sig- 
nilication of such obseure words and 
terms used either in the common or 
statute laws of this realm. 1st Edn. 
1 yol, folio. Cambridge, 1607. 


21 Edn. London, 1672. 
London, 1708. 


—-—, Same. ad 


Edn. 


CRAMER, Andreas Wilhelm. Supple 
menti ad Barnabx Brissonii opus, De 
verborum que ad jus civile pertinent 
significatione, specimen. 1 vol. 4to. 
Kiliae, 1813. 


CUNNINGHAM, T. Anewandcomplete 
law dictionary or general abridgment 
of the law. Sd Edn. 2 vols. 4to. 
London, 1783. 


DALLOZ, Armand. Dictionnaire general 
et raisonné de legislation, de doctrine, 
et de jurisprudence, en maticre civile, 
commerciale, criminelle, administra- 
tive, et de droit public. 4 vols. 4to. 
Paris, 1838. 


BIBLIOGRAPHICAL LIST OF PRINCIPAL LAW DICTIONARIES, 


ESCRICHE, Joaquin. Diccionario razo- | 
nado de legislacion y jurisprudencia. 


8d Edn. 2 vois, 4to, Madrid, 1847. 
FERRIERE, Clande Joseph. Diction- 
naire dedroitet de pratique. Ist Edn. 


1754. 2d Edn. i740. 
d4to. Paris, 1762. 


GOIRAND, Leopold. Glossary of French 
judicial terms. [In his work on the 
French Code of Commerce. I vol- 
8vo. London, 1880.] 


HALKERSTON, Peter. <A collection of 
Latin maxims and roles in law and 
equity, selected from the most eminent 
authors on the civil, canon, feudal, 
English, and Scots law, with an En- 
glish translation. 1 vol, 8vo. Edin- 
burgh, 1823. 


HOLTHOUSE, Henry James. A new 
Jaw dictionary, containing expiana- 
tions of such technical terms and 
phrases as occur in the works of legal 
authors, in the practice of the courts, 
and in the parliamentary proceedings 
of the houses of Lords and Commons. 
Ist Edn. London, 1839. 

—, Same. American edu. from 2d En- 
glish edn, 1 vol. 12mo, Philadelphia, 
1847, 


HOLTZENDORFF, Franz von. Hechts- 
Lexicon. [Part second of his Eney- 
clopwdie der Rechts-wissenschaft.] 2 
yois. 8vo. Leipsie, 1576. 


JACOB, Giles. Anew law dictionary, con- 
taining the interpretation and defini- 
tion of words and terms nsed in the 
law, as also the law and practice under 
the proper heads and titles; together 
with such learning as explains the his- 
tory and antiquity of the law, our 
manners, customs, and original govern- 


8d Edn. 2 vols. 


ment. 10th Edn. By J. Morgan, 1 
voi. folio. London, 1782. 
——-, Same. Ist American edn. from [Tom- 


lin’s] 2d English edn. 
Philadelphia, 1811, 


KELHAM, Robert. <A dictionary of the 
Norinan or old French language. 1 
yol. 8yoa, London, 1779. 


LAWSON, John D. A concordance of 
words and phrases construed in the 
judicial reports, and of legal defin: tions 
contained therein. 1 vel. vo. St. 
Louis, 1883. 


6 vols. 8vo. 


BIBLIOGRAPHICAL LIST OF PRINCIPAL LAW DICTIONARIES. 


LEE, Thomas. A dictionary of the prac- 
tice in civil actions in the courts of 
King’s Bench and Common Pleas, with 
practical directions and forms, ar- 
ranged under each title. 2d Edn. 2 
vols. 8vo. London, 1825. 


LLOYD, A. Pariett. Glossary of words 
and terms frequently used by builders, 
architects, ele, [Printed in his Trea- 
tise on the Law of Building. 1 vol. 
S8vo. Boston, 1888. ] 


LOFFT, Capel. Maxims and rules of the 


law of England and principles of equi- | 


ty. [In his reports of cases adjudged | 


1 vol. 
Sume, 1 vol. 


in the court of King’s Bench. 
folio. London, 1776. 
8vo. Dublin, 1790.) 


MAXWELL, John Irwing. A pocket 
dictionary of the law of bills of ex- 
change, prowissury notes, bank notes, 
checks, ete. 1 vol. 12mo. Philadel- 
phia, 1808. 


MONTEFIORE, Joshua. A commercial 

dictionary, containing the present state 

_ of mercantile law, practice, and cus- 

tom. Ist Amer. Edn. 38 vols. 8vo. 
Philadelphia, 1804. 


MOZLEY (Herbert Newman) and 
WHITLEY, (George Crispe.) 
A concise law dictionary. I vol. 8vo. 
London, 1876. 


OSTERSEN, Christian. Glossarinm juri- 
dico-Danicum., 1 vol. 4to. Wjiben- 
aavn, 1641. Note. A secon, revised 
edition was printed in 1652, and this 


was reprinted in 1665 and subse- 
quently. 
POTTS, Thomas. A compendious law 


dictionary, containing beth an expla- 
nation of the terms and tlie law itself. 
Intended for the use of the country 
gentleman, the nierchant, and the pro- 
fessional man. ivel.16mo. London, 
18038. 


RAPALJE (Stewart) and LAWRENCE, 
(Robert L.) <A dictionary of Amer- 
ican and English law. 2 vols. 8vo. 
Jersey City, 1883. 


RASTELL, John. Terms of the law; cr 
certain difficult and obscure words and 
terms of the common and statute laws 
expounded and explained in Vrench 
and English. 1 vol. l6mo. Londun, 


ix 


1721. Note. This work is also known 
as “Termes de la Ley.” 


RAWSON, Henry Gilbert. The pocket 
law lexicon, explaining technical words, 
phrases, and maxims of the English, 
Scotch, and Roman Jaw. 2d Eda. 1 
vol. l6mo. London, 1884. 


SCHLYTER, Carl Johan. Glossarium ad 
corpus juris Sueo-Gotorum antiqui. 
Ordbok till Samlingen of Sweriges 
Gainla Lagar. 1 vol. 4to. Lund, 1877. 


SKENE, John. De verborum significa- 
tione; the exposition of the termes and 
difficill wordes contcined in the foure 
buiks of “Regiam Majestatem” and 
uthers, in the acts of parliament, ete. 
Lyol. 4to, London, 1641. 

Printed at the end of the col- 

Folio, 


—, Same. 
lection of Lhe luws of James I. 
Edinburgh, 1597. 


SPELMAN, Sir Henry. Glossarium ar- 
chaiologicum; continens Latino-Bar- 
bara, peregrina, obsoleta, et novati 
significationis vocabula. Ist Edn. 1 
vol. 4to. Londen, 1626, 

—,Same. 8d Edn. 1 vol. folio. 
don, 1687. 


STIMSON, F. J. Glossary of technical 
terms, phrases, and maxims of the 
common law. 1 vol. 12me. Boston, 
1881. 


SWEET, Charles. A dictionury of English 
law, containing detinitions of the tech- 
nical terms in modern use and a con- 
cise statement of the rules of law 
affecting the principal subjects, with 
historical and etymological notes. 1 
vol. 8vo. London, 1882. 


TAYLER, Thomas. A law-glossary of the 
Tain, Greek, Norman, French, and 
other languages, interspersed in the 
commentaries by Sir W. Blackstone, 
Knt., and various law treatises upon 
each branch of the profession, trans- 
lated into English and alphabetically 
arranged. J vol.8vo. London, 1819. 

American edition. Albany, 


Lon- 


——, Same. 
18388. 
THRMES DE LA LEY. 


TOLLUIRE (R. 8.) and BOULET (J. 
B. E.) Nouveau dictionnaire des 
termes de droit et de pratique: ou 
Ferriére moderne, lvol.8vo. Paris, 
1841. 


See RASTELL. 


HK 


x BIBLIOGRAPHICAL LIST OF PRINCIPAL LAW DICTIONARIES. 


TOMLINS, Sir Thomas B. The law dic- 
tionary, explaining the rise, progress, 
and present state of the British law, 
defining and interpreting the terms or 
words of art. 4th Edn. 2 vois. 4to. 
London, 1335. 

-~—, Same. 


Edn. 3 vols. Svo. 


TRAYNER, John. Latin phrases and 
rnuxims, collected from the institn« 
tional and other writers on Scotch law, 
with translations and iliustrations. 
2d Edn. 1 vol. i2mo. Edinburgh, 
1876. 


VICAT, Philip. Vocabularium juris 
utriusque, ex variis ante editis, 2d 
Edn. 4 vols. 8vo. Naples, 1760. 


WHARTON, J. J. S. The law lexicon, 
forming an epitome of the law of Iing- 
land, and containing full explanations 
of the technical terms and purases 
thereof, both ancientand modern, Ist 
Edn. lvol.8vo, London, 1848. 


ist Ameriean from 4th English 
Philadelphia, 1836. | 


WHARTON, J.¢.5. Same. 7th Edn,™ 
J.M. Lely. lvol. 8vo. London, 18 . 
——,Same. Ist Ainerican from Ist inglish 
Edn. lvol. 8vo, Philadeiphia, i854. 
WHISHAW, James. <A new law diction- 
ary, containing a concise exposition of 
the mere terms of art and such obso- 
lete words as occur in old legal, bistor- 


ical, and antiquarian writers. 1 vol. 
8vo. London, 1829, 
WILLIAMS, Thomas Walter. A com- 


pendious and comprehensive law dic- 
tionary, elucidating the terms and gen- 
eral principles of law and equity. 1 
vol. 8vo. London, 1816. 


WINFIELD, Charles H. Adjudged words 
and phrases, being a collection of ad- 
judicated definitions of terms used in 
the law, with references to authorities. 
1 vol. vo. Jersey City, 1382. 


WINGATE, Edmond. Maxims of reason, 
or the reason of the common law of 
England. 1 vol. fio. London, 1658. 


BLACK’S DICTIONARY OF LAW. ° 


x. 


A. The first lefter of the English alpha- 
bet; used to distinguish the first page of a 
folic from the second, marked b, or the first 
page of a book, the first foot-note on a printed 
page, the first of a series of subdivisions, etc., 
from the following ones, which are marked 
b, ¢, d, 6, ete. 


A, Lat. The letter marked on the bal- 
lots by which, among the Romans, the people 
voted against a proposed law. It was the 
initial Jetter of the word “antiguo,” I am 
for the old jaw. Tayl. Civil Law, 191. 


A. Lat. The letter inseribed on the bal- 
lots by which, among the Romans, jurors 
voted to acquit an accused party. It was 
the initial letter of “aésolvo,” T acquit. Tayl. 
Civil Law, 192. 


“A.” The English indefinite article. 
This particle is not necessarily a singular 
term; it is often used in the sense of “any,” 
and is then applied to more than one indi- 
vidual object. 141 Mass. 266, 4 N. Ti. Rep. 
794; 101 N. Y. 458, 5 N. E. Rep. 322; 60 
Iowa, 223, 14 N. W. Rep. 247. 


A.D. Lat, Contraction for Anne Dom- 
tié, {in the year of our Lord.) 


4. R. Anno regni, the year of the reign; 
as, A. R. V.R. 22, (Anno Regni Victoria 
Reyinw vicesime secundo,) in the twenty- 
second year of the reign of Queen Victoria. 


Al. Of the highest qualities. An ex- 
pression which originated in a practice of 
underwriters of rating vessels in three clagses, 
—A, Bb, and ©; and these again in ranks 
numbered. 4 Ubott. 


A AVER ET TENGR. L. Fr. (1. Lat. 
habendum et tenendum.) To have and to hold. 
Oo, Litt. $§ 528, 524. A aver et tener a luy 
ét @ ses heires, a touts jours,—to have and to 
hold to him and his heirs forever. Id. § 625. 
See AVER ET TENER. 


AM. DIOT.LAW—1 


C 


A CHILO USQUE AD CENTRUM. JD 


From the heavens to the center of the earth. 


A communi observantia non est re- 
ecedendum. From common observance there 
should be no departure; there must be no de- 
parture from common usage. 2 Coke, 74; 
Co, Litt. 186a, 2296, 365a; Wing. Max. 752, 
max. 203. A maxim applied to the practice 
of the courts, to the ancient and established 
forms of pleading and conveyancing, and to 
professional usage generally. Id. 752-755. 
Lord Coke applies it to common professional 
opinion, Co. Litt. 1862, 3646. 


A CONSILIIS. (Lat. constlium, advice.) 
Of counsel; a counsellor, ‘The term is used 
in the civil law by some writers instead of a 
responsis. Spelman, “Apocrisarius.” 


A CUBILLETTE. In French law, In 
relation to the contract of affreightment, 
signifies when the cargo is taken on condition 
that the master succeeds in completing his 
cargo from other sources. Arg. Pr. Mere. 


Law, 543. 
A DATU, L. Lat. From the date. 2 
Salk, 413. «A die datiis, from the day of the 


date. Id,; 2 Crabb, Real Prop. p. 248, § 1801; 
1 Ld. Raym. 84, 480; 2 Ld. Raym. 1242, 4 
dato, from the date. Cro, Jac. 135. 


A digniori fleri debet denominatio. 
Denomination ought to be from the more 
worthy. The description (of a place) should 
be taken from the more worthy subject, (as 
from a will.) Fleta, lib. 4, c. 10, § 12. 


A. digniori fleri debet denominatio et 
resolutio. The title and exposition of a 
thing ought to be derived from, or given, or 
made with reference to, the mora worthy de- 
gree, quality, or species of it. Wing. Mux, 
265, max. 75. 


A FORFAIT ET SANS GARANTIE, Ml 


In French law. <A formula used in indors- 


A FORTIORI 


Ing commercial paper, and equivalent to 
“without recourse.” 


A FORTIORI., By a stronger reason. 
A term used in logic te denote an argument 
to the effect thut because one ascertained fact 
exists, therefore another, which is included 
in it, or analogous to it, and whieh is less im- 
probable, unusual, or surprising, must also 
exist. 


A GRATIA. From grace or favor; a3 a 
matter of indulgence, not of right. 


A LATERE. Lat. From the side. In 
connection with the succession to property, 
theterni means “collateral.” Braet, fol. 200, 
Also, sometimes, “without right.” Id, fol. 
426, In ecclesiastical law, a legate a latere 
is one invested with full apestolic powers; 


ons authorized to represent the pope as if the | 


iatter were present. Du Cange. 


A LIBELLIS. L, Lat. An officer who 
had charge of \..¢ /dbelZi or petitions addressed 
to the sovereign. Calvin. A name some- 
times given to a chancellor, (canccliarius,) 
in the early history of that office. Spelman, 
“Cancellarius.” 


A Vimpossible nul n’est tenu. Noone 


is bound to do what is impossible, 


A ME. (Lat. ego, I.) A term denoting 
direct tenure of the superiorlord. 2 Bell, H. 
L.Se. 133. Unjustlydetaining from me. He 
is said to withhold @ me (from me) who has 
obtained possesston of my property unjustly. 
Calvin. 


A MENSA ET THORO. From bed 
and board. Deseriptive of a limited divorce 
or separation by judicial sentence. 


‘A NATIVITATE. IT'rom birth, or from 
infancy. Denotes that a disability, status, 
ete., is congenital, 


A Non posse ad non esse sequitur ar- 
gumentum necessarie negative. From 
the impossibility of a thing to its non-exist- 
ence, the inference follows necessarily in the 
negative, That which cannot be done is not 
Jone. Hob, 3366. Otherwise, in the aflirm- 
ative. Id, 


A PALATIO. L. Lat. From palatium, 
(a palace.} Counties palatine are hence so 
called. 1 Bl. Comm, 117. See PaLatiom. 


A piratis aut latronibus capti liberi 
permanent. Persons taken by pirates or 
robbers remain free, Dig. 49, 15, 19, 2; Gro. 
de J. B. lib. 3, ¢. 3, § L 


A BESPONSIS 


A piratis et latronibus capta domin- 
jum non mutant. Things taken or capt- 
ured by pirates and robbers do not change 
their ownership. Bynk. bk. 1,¢. 17; 1 Kent, 
Comm. 108,184. No right to the spoil vests 
in the piratical captors; no right is derivable 
from them to any recaptors in prejudice o. 
the original owners. 2 Wood. Lect. 428. 


A POSTERIORI. A term used in logic 
to denote an argument founded on experi- 
ment or observation, or one which, taking 
ascertained facts as an effect, proceeds by 
syuthesis and induction to demonstrate their 
cause, 


A PRENDRE. L.Fr. Totake. Bre 
& prendre la terre, a writ to take the land. 
Fet Ass. § 51. A right to take something 
out of the soil of another is a profit @ pren- 
dre, or a right coupled with a profit. 1 
Crabb, Reai Prop. p. 125, § 115. Distin- 
guished from an easement. 5 Adol. & HE. 7538. 
Sometimes written as one word, apprendre, 
apprender. 


A PRIORI. A term used in logic to de- 
note an argument founded on analogy, or ab- 
stract considerations, or one which, positing 
a general principle or admitted truth as a 
cause, proceeds to deduce from it the effects 
which must necessarily follow. 


A QUO. A term used, with the correla- 
tive ad quem, (to which,) in expressing the 
computation of time, and also of distance in 
space. Thus, dies a quo, the day from which, 
and dies ad quem, the day to which, a peried 
of time is computed, So, terminus a quo, 
the point or limit from which, and terminus 
ad quem, the point or limib to which, a dis- 
tance or passage in space is reckoned. 


A QUO; A QUA. From which. The 
judge or court from which a cause has been 
brought by error or appeal, or bas otherwise 
been removed, is termed the judge or court 
@ quo; a qua, Abbott. 

A RENDRE, (Ir, to render, to yield.) 
Tirat which is to be rendered, yielded, or paid. 


Profits &@ rendre comprehend rents and sery- 
ices. Ham. N. P. 192. 


A reseriptis valet argumentum, An 


argument drawn from original writs in the 


Co, Litt, lle. 


A RESPONSIS. L. Lat. 
tieallaw. One whose office it was to give or 
convey answers; otherwise termed respon- 
salis, and aporrisiarius. One who, being 
consulted on ecclesiastical matters, gave an- 


register is good. 


In ecclesias- k 


—_ 


| 


A RETRO 


swers, counsel, or atlvice; otherwise termed 
a@consiliis. Spelman, “A pocrisiarins.” 


A RETRO. L. Lat. Behind; in arrear. 
Ht veditus proveniens inde a vetro fuertt, 
and the rent issuing therefrom be in arrear. 


Fleta, lib. 2, c. 55, § 2. 


A RUBRO AD NIGRUM. Lat. From 
the red to the black; from the rubric or title 
of a statute, (which, anciently, was in red 
letters, ) to its body, which was in the ordi- 
nary tlack, Tray. Lat. Max.; Beil, “Ru- 
brie.” 


A summo remedio ad inferiorem ac- 
tionem non habetur regressus, neque 
auxilium. From (after using) the highest 
remedy, there can be no recourse (going 
buck) te an inferior action, nor assistance, 
(derived from it.) Fleta, lib. 6, c. 1, § 2. 
A maxim in the old law of real actions, when 
there were grades in the remedies given; 
the rule being that a party who brought a 
writ of right, which was the highest writ in 
the law, could not afterwards resort or de- 
scend to an inferior remedy. Bract. 1126; 
8 Bl. Comm. 193, 194. 


A THEMPORE CUSUS CONTRARII 
MEMORIA NON EXISTET. From time 
of which memory to the contrary does not 
exist. 


A verbis legis non est recedandum., 
From the words of the liw there must be no 
departure. 5 Coke, 119; Wing. Max. 25. A 
court is not at liberty to disregard the express 
letter ofa stalute, in favor of a supposed in- 
tention. 1 Steph. Comm. 71; Broom, Max, 
268. ; 


A VINCULO MATRIMONTII. (Lat. 
from the bond of matrimony.) A term de- 
seriptive of a kind of divorce, which effects 
a complete dissolution of the marriage con- 
tract, See Divogce. 


Ab abusu ad usum non valet conse- 
quentia. A conclusion as to the use of a 
thing from its abuse is invalid. Broom, 
Max, 17. 


AB ACTIS. Lat. An officer having 
charge of acta, public records, registers, jour- 
nals, or minutes; an officer who entered on 
record the acta or proceedings of a court; a 
elerk of court; a notary or actuary. Calvin. 
Lex. Jurid. See “Acta.” This, and the 
similarly formed epithets & cancellis, & secre- 
tis, & dite/lis, were also anciently the titles 
of a chancellor, (cancellarvius,) in the early 


3 


AB INTESTATO 


history of that office. 
rius.” 
AB AGENDO. Disabled from acting; 


unable to act; incapacitated for business or 
transactions of any kind. 


AB ANTE. Inadvance. Thus, a legis- 
lature cannot agree ab ante to any modilica- 
tion er amendment to a law which a third 
person may make. 1 Sum. 308. 


AB ANTECEDENTE. BSBeforehand; in 
advanee, 


AB ANTIQUO, Of old; of an ancient 
date. 


Spelman, “Cancella- 


Ab assuetis non fit injuria, From 
things to which one is accustomed (or in 
wiich there has been long acquiescenee}no 
legal injury or wrong arises. if a person 
neglect to insist on his right, he is deemed to 
have abandoned it. Amb. 645; 3 Brown, Ch. 
639, 


AB EPISTOLIS. Lat. An officer hav- 
ing charge of the correspondence (epistol@) 
of his superior or sovereign; a secretary. 


Caivin.; Spiegelius. 


AB EXTRA. (Lat. extra, beyond, with- 


| ont.) From without. 14 Mass. 151. 


AB INCONVENIENT. From hard- 
ship, orinconvenience. Anargument found- 
ed upon the hardship of the cage, and thein- 
convenience or disastrous consequences to 
which a different course of reasoning would 
lead. 


AB INITIO. L. Lat. From the begin- 
ning; from the first act, A party is said to 
be a trespasser ab initie, an estate to be good 
ab initio,an agreement or deed to be void ah 
initio, a marriage to be unlawtul ¢6 initio, 
and the like. Plow. 6a, I6¢; 1 Bl. Comm. 
440. 


AB INITIO MUNDI. Lat. From the 
beginning of the world. Ab initio mundi 
usgue ad hodiernum diem, from the begin- 


| ning of the world to this day. Y. iB. M.1 


Edw. ill. 24. 


AB INTESTATO, Lat. in the civil 
law. From an intestate; from the intestate; 
in case of intestacy. Hereditas ab intestato, 
an inheritance derived from an intestate. 
Inst. 2,9, 6. Suecessiv ab tntestato, succes- 
sion to an intestate, or in case of intestacy. 
id. 3, 2, 3; Dig. 38, 6, 1. This answers to 
the descent or inheritance of real estate at 
common law. 2 BI, Comm. 490, 516; Story, 
Confl. Laws, § 450. “Heir ab intestate.” 


™ 


AB INVITO 


1 Burr. 420. The phrase “ab intestato” is 
generally used as the opposite or alternative 
of ea testamento, (from, by, or under a will.) 
Vel ex testamento, vel ab intestato [hered- 
ttales] perltinent,—inheritances are derived 
either from a will or from an intestate, (one 
who dies without a will.) Inst. 2, 9, 6; Dig. 
29, 4; Cod. 6, 14, 2. 


AB INVITO. Lat. By orfrom an un- 
willing party. A trausfer ab invito is acom- 
pulsory transfer, 


AB IRATO. By one whois angry. A 
devise or gift made by a man adversely to the 
interest of his heirs, on account of anger or 
hatred against them, is said to be made ab 
trato. A suit to set aside such a will is 
called an action a6 iraio, Mer). HKepert. 
“Ab trato.” 


ABACTOR. In Roman law. A cattle 
thief; a driver away of cattle and other ani- 
mals; one who stole cattle in numbers; one 
who abstracted cattle from the herd, intend- 
ing to steal them. Also culled «abigeus. 
Blount; Cowell, 


ABADENGO. In Spanish law. Land 
owned by an ecclesiastical corporation, and 
therefore exemyt from taxation. In partic- 
ular, lands or towns under the dominion and 
jurisdiction of an abbot. 


ABALIENATIC. In Romanlaw. The 
perfect conveyance or transfer of property 
from one Roman citizen to another. ‘This 
ferm gave placo to the simple alienatio, 
which is used in the Digest and Institutes, 
as well ag in the feudal law, and from which 
the English “alienation” has been formed. 


- Inst. 2, 3, pr.; Id. 2, 1, 40; Dig. 50, 16, 28. 


ABAMITA. Lat. In thecivillaw. A 
preat-preat-grandfather’s sister, (abavi so- 
ror.) Inst. 3, 6, 6; Dig. 38, 10, 3. Called 
amita maxima. Id. 38, 10, 10,17. Called, 
in Bracton, abamita magna. Bract. fol. 68d. 


ABANDON. To desert, surrender, re- 
linquish, give up, or cede. See ABANDON- 
MENT. 


ABANDONEE. A party to whom aright 
or property is abandoned or relinquished by 
another. Applied to the insurers of vessels 
and cargoes. Lerd Ellenborough, C. J., 5 
Maule & S. 82; Abbott, J., Id. 87; Holroyd, 
J7, kde So. 


ABANDONMENT. The surrender, re- 
Iinquishment, disclaimer, or cession of prep- 
erty or of rights. 


4 


ABANDONMENT FOR TORTS 


The giving up a thing absolutely, without 
reference to any particular person or purpose; 
as throwing a jewel into the highway; leav- 
ing athing to itself, as a vessel ab sea; de- 
sertion, or dereliction. (2 Bl. Comm. 9, 10.) 
Burrill. 


In marine insurance. A relinquish- 
ment or cession of property by the owner to 
the insurer of it, in order to claim as for a 
total loss, when in fact it is so by construc- 
tion only. 2 Steph. Comm. 178. The exer- 
cise of a right which a party having insured 
goods or vessels has to call upon the insurers, 
in cases where the property insured has, by 
perils of the sea, become so much damaged 
as to be of little value, to accept of what is 
or may be saved, and to pay the full amount 
of the insurance, as if a total loss lad actu- 
ally happened. Park, Ins. 143; 2 Marsh. Ins, 
559; 3 Kent, Comm. 318-335, and notes. 

Abandoument is the act by which, after a 
constructive total loss, a person insured by 
contract of marine insurance declares to the 
insurer that he relinquishes to him his inter- 
est in the thing insured. Civil Code Cul. 
§ 2716. 

The term is used only in reference to risks 
in navigation; but the principle is applicable 
in fire insurance, where there are remnanis, 
and sometimes, also, under stipulations in 
life policies in favor of creditors. 


In maritime law. The surrender of a 
vessel and freight by the owner of the same 
toa person having a claim thereon arising 
out of a contract ade with the master. See 
Poth. Chart. § 2, art. 3, § 51. 

By husband or wife. The act of a hus- 
band or wife who leaves his oz her consort 
willfully, and with an intention of causing 
perpetual separation. 

“ Abandonment, in the sense in which it is 
used in the statute under which this proceed- 
ing was commenced, may be defined to be the 
act of willfully leaving the wife, with the 
intention of causing a palpable separation be- 
tween the parties, and implies an actual de- 
sertion of the wife by tue husband.” 60 Ind. 
279. 


In French law. The act by which a 
debtor surrenders his property for the benefit 
of his creditors. Merl. Repert. “Abandon- 
ment.” 


ABANDONMENT FOR TORTS. In 
the civil law. The act of a person who was 
sued in a noxal action, i. e., fora tort or tres- 
pass committed by his slave or his anima}, in 
relinquishing and abandoning the slave or 


ABANDUN 


animal to the person injured, whereby he 
saved himself from any further responsibility. 
Seo Inst. 4, 8,9; 11 La. Ann. 396, 


ABANDUN, or ABANDUM. Anything 
sequestered, proscribed, or abandoned. Aban- 
don, i, 2., in bannum res missa, a thing 
banned or denounced as forfeited or lost, 
whence to abandon, desert, or forsake, as 
lostand gone, Cowell. 


ABARNARE. Lat. To detect or dis- 
cover, and disclose toa magistrate, any secret 
crime. Leges Canuti, cap. 10. 


ABATAMENTUM. L.Lat. Inald En- 
plish law, An abatement of freehold; &n 
entry Bpon lands by way of interposition be- 
tween the death of the ancestor and the entry 
of the heir. Co. Litt. 277a; Yel. 151. 


ABATEMENT. In pleading. Theef- 
feot produced upon an action at law, when 
the detendant pieads matter of fact showing 
the writ or declaration to be defective and 
incorrect. This defeats the action for the 
time being, but the plaintiff may proceed with 
it afler the defect is removed, or may recom- 
mence it in # better way. In England, in 
equity pleading, declinatory pleas to the ju- 
Tigiliction and dilatory to the persons were 
(prier to the judicature acl) sometimes, by 
analogy to common law, termed “pleas in 
abatement.” “ 

In chancory practice. The determina- 
tion, cessation, or suspension of all proceed- 
ings in a suit, from the want of proper par- 
ties capable of proceeding therein, as upon 
the death of one of the parties pending the 
suit. See 2 Tidd, Pr, 9382; Story, Eq. Pl. 
§ dod. 

In mercantile law. A drawback or re- 
bate allowed in certain cases on the duties 
due on imported goods, in consideration of 
their deterioration or damage suffered during 
importation, or while in store. A diminn- 


tion or deereuse in the amount of tax imposed | 


upon any person. 

In contracts. A reduction made by the 
creditor for the prompt payment of adebi due 
by the payor or debtor. Wesk. Ins. 7. 

Of legacies and debts. <A proportional 
diminution or reduction of the pecuniary leg- 
ucies, when the tunis or assets out of which 
sucli legacies are payable are not sufficient to 
pay theminfall, Ward, Leg. p. 369, c. 6, $7; 
1 Story, Eq. Jur. § 555; 2 Bl. Comm. 512, 
618. In equity, when equitable assets are 
insufficient to satisfy fully all the creditors, 


ABAVIA 


they must be content with a dividend; for 
eguttas esi quasi equalitas. 


ABATEMENT OF A NUISANCE. 
The removal, prostration, or destruction of 
that which causes a nuisance, whether by 
breaking or pulling it down, or otherwise re- 
moving, disintegrating, or effacing it. 

The remedy which the law allows a party 
injured by a nuisance of destroying or re- 
moving it by his own act, so as he commits 
no riot in doing it, nor occasions (in the case 
of a private nuisance) any damage beyond 
what the removal of the inconvenience nec- 
essarily requires. 3 BI. Comm. 5, 168; 3 
Steph. Comm, 361; 2 Salk. 458. 


ABATEMENT OF FREEHOLD. This 
takes place where a person dies seised of an 
inheritanee, and, before the heir or devisee 
enters, a stranger, having no right, makes a 
wrongful entry, and gets possession of it. 
Such an entry is technically called an “abate- 
ment,” and the stranger an “abator.” Itis, in 
fact, a ligurative expression, denoting that 
the righLful possession or freehold of the heir 
or devisce is overthrown by the unlawful in- 
teryontion of a stranger. Abatement differs 
from intrusion, in that it is always to the 
prejudice of the heiy or immediate devisee, 
whereas the latter is to the prejudice of the 
reverstoner or remainder-man; and cisseisin 
differs from them both, for to disseise is to 
put forcibly or fraudulently a person seised 
of the freehvid out of possession. 1 Co. Inst. 
277a,; 3 Bl. Comm. 166. By the ancient laws 
of Normandy, this term was used to signify 
the act of one who, having an apparent right 
of possession to an estate, took possession of 
it immediately after the death of tie actual 
possessor, before the heir entered. (Howard, 
Ancienues Lois des Francais, tome 1, p. 539.) 
Bouvier. 


ABATOR. In real property law, a 
stranger who, having no right of entry, con- 
trives to get possession of an estate of free- 
hold, to the prejudice of the heir ur devisee, 
before the lalter can enter, after the anees- 
tor’s death. Litt. § 397. In the law of torts, 
one who abates, prostrates, or destroys a uni- 
sanee. 


ABATUDA. Anything diminished. 
Moneta abatnda is money clipped or dimin- 
ished in value. Cowell; Dufresne, 


ABAVIA. Lat. In the civil law. A 
great-great-grandmother. 


their debts must abate in proportion, and | 38, 10,1, &: Bract. fol. 688. 


Inst, 3,6, 47 Bics) 


ABA VITA 


ABAVITA, A great-great-grandfather’s 
sister. Bract. fol. 686. This is a misprint 
for ebamiia, (q. v-) Burrill. 


ABAVUNCULUS. Lat. In the civil 
law <A great-great-grandmother’s brother, 
(abavie frater.) Inst. 3, 6, 6; Dig. 38, 10, 
3. Called aruneulus maximus. Id. 38, 10, 
10,17. Called by Bracton and Fleta ata- 
cunculus magnus. Bract. fol. 686; Fleta, 
lib. 6, c. 2, § 19. 


ABAVUS. Lat. In the civil law. A 
great-great-grandfather. Inst. 3, 6, 4; Dig. 
38, 10, 1, 6; Bract. fol. 67a. 


ABBACY. The government ofa religious | 


house, and the revenues thereof, subject to 
an abbot, as a bishopric is to a bishop. Cow- 
ell. The rights and privileges of an ab- 
bot. 


ABBEY. A society of religious persons, 
having an abbot or abbess to preside over 
them. 


ABBOT. The spiritual superior or gov- 
ernor of an abbey or monastery. Feminine, 
Abbess, 


ABBREVIATE OF ADJUDICATION, 
In Scotch law. An abstract of the decree of 
adjudication, and of the lands adjudged, with 
the amount of the debt. Adjudication is that 
diligence (execution) of the law by which the 
real estate of a debtor is adjudged to belong 
to his creditor in payment of a debt; and the 
abbreviate must be recorded in the register of 
adjudications. 


ABBREVIATIO PLACITORUM. An 
abstract of ancient judicial records, prior to 
the Year Books. See Steph. Pl. Append. xvi. 


ABBREVIATIONS. Shortened conven- 
tional expressions, employed as substitutes 
for names, phrases, dates, and the like, for 
the saving of space, of time in transcribing, 
ete. Abbott. - 


Abbreviationum, ille numerus et sen- 
sus accipiendus est, ut conccssio non 
sit inanis. In abbreviations, such number 
gnc sense is to be taken that the grant ve not 
made void. 9 Coke, 48, 


AEBREVIATORS. Inecclesiastical law. 
Officers whose duty it is to assist in drawing 
up the pope's briefs, and reducing petitions 
into proper form to be converted inte papal 
bulls. Bouvier. 


ABPBROCHMENT, or ABBROACH- 
MENT. The act of forestalling a market, 


ABETTOR 


by buying up at wholesale the merchandise 
intended to be sold there, for the purpose of 
selling it at retail. See FORESTALLING. 


ABDICATION. ‘The act of a sovereign 
in renouncing and relinquishing his govern- 
ment or throne, so that either the throne is 
left entirely vacant, or is filled by a succes- 
gor appointed or elected beforehand. 

Also, wherea magistrate or person in office 
voluntarily renounces or gives it up before 
the time of service has expired. It differs 
from resignation, in that resignation is made 
by one who has received his oflice from an- 
other and restores it into his hands, as an in- 
ferior into the hands of a superior; abdica- 
tion is the relinquishment of an office which 
has devolved by act of law. It is said to be 
a renunciation, quitting, and relinquishing, 
so as to have nothing further to do witha 
thing, or the doing of such actions as are in- 
consistent with the holding of it. Chambers, 


ABDUCTION. In criminal law. The 
offense of taking away a man’s wife, child, 
or ward, by fraud and persuasion, or open 
violence. 3 BI. Comm. 139-141. 

The unlawful taking or detention of any 
female for the purpose of marriage, concu- 
binage, or prostitution. 


ABEARANCE. Behavior; as a recog- 
nizance to be of good abearance signifies to 
be of good behavior. 4 Bl. Comm. 251, 256 


ABEREMURDER.: (From Sax. abere, 
apparent, notorions; and mord, murder.) 
Plain or downright murder, as distinguished 
from the less heinous crime of manslaughter, 
or chance medley. It was declared a capital 
offense, without fine or commutation, by the 
laws of Canute, ¢. 93, and of Hen. I. c. 13. 
Spelman. 


ABESSE. Lat. In the civillaw. To be 
absent; to be away froma place. Said ofa 
person who was extra continentia urbis, (be- 
yond the suburbs of the city.) 


ABET. In criminallaw. To encourage, 
incite, or set another on to commit a crime. 
To abet another to commit a murder is to 
command, procure, or counsel him to commit 
it. Old Nat. Brov. 21; Co. Litt. 475. 


ABETTATOR. IL. Lat. In old English 
law. An abettor. Fleta, lib. 2, ¢. 65, § 7. 
See ABETTOR, 


ABETTOR. In criminal law. An in- 
atigator, or setter on; one who promotes or 
procures a crime to be committed; one who 
commands, advises, instigates, or encourages 


ABETTOR 


another tocommit a crime; a person who, be- 
ing present or in the neighborhood, incites 
another to commita crime, and thus beeemes 
& principal. 

The distinetion between abettors and ac- 
eessaries is the presence or absence at the 
commission of thecrime, Cowell; Fleta, lib. 
i,c. 34 Presence and participation are nec- 
essary to constitute a person an alettor. 4 
Shars, B]. Comm. 33; Russ. & R. 99; 9 Bing. 
N, ©. 440; 13 Mo. 382; 1 Wis. 159; 10 Pick. 
477. 


ABEYANCE. In the law of estates. Ex- 
pectation; wailing; suspense; remembrance 
and contemplation in law. Where there is 
no person in existence in whom an inherit- 
ance can vest, if is said to be in abeyance, 
that is, in expectation; the law considering 
it as always potentially existing, and ready 
to vest whenever a proper owner appears. 2 
Bl. Comm, 107. Or, in other words, it is 
said to be in the remembrance, consideration, 
and intendment of the law. Co. Lilt, §§ 646, 
650. The term “abeyance” is also sometimes 
applied to personal property, ‘Thus, in the 
case of maritime captures during war, it ia 
said that, until the capture becomes invested 
with the character of prize by a sentence of 
condemnation, the right of property is in 
abeyance, or in a state of legal sequestration. 
1 Kent, Comm. 102. It has also been applied 
to the franchises of a corporation. “Whena 
corporation is to be brought into existence by 
some future acts of the corporators, the fran- 
chises remain in abeyance, until such acts are 
done; and, when the corporation is brought 
into life, the franchises instantaneously at- 
tach toit.” Story, J., 4 Wheat. 691. 


ABIATICUS, or Aviaticus. L. Lat. 
In feudal law. <A grandson; the son of a 
son. Spelman; Lib. Feud., Baraterii, tit. 4, 
cited Id. 


ABIDE. To “abide the order of the court” 
means to perform, execute, or coniorm to 
such order. 8 Cush. 297; 7 Tex. App. 38; 
108 Mass. 585. 

A stipulation in an arbitration bond that 
the parties shall “abide by” the award of the 
arbitrators means only that they shall await 
the award of the arbitrators, without revok- 
ing the submission, and not that they shall 


acquiesce in the award when made. 6N.H. 
162; 48 N. H. 40. © 
ABIDING BY. In Scotch law. A ju- 


dicial declaration that the party abides by the 
deed on which he founds, in an action where 
the deed or writing is attacked as forged, 


ABILITY 


Unless this be done, a decree that the deed is 
false will be pronounced. Pat. Comp. it 
has the effect of pledging the party to stand 
the consequences of founding on a forged 
deed. Bell, ; 


ABIGEATORES. Intheciviliaw, Cat- 
tle stealers; those who drove away cattle or 
other animals, with the intention of stealing 


them, A rarer form of abiget, (q. vy.) Cal- 
vin. 
ABIGHATUS. Lat. (From abiyere, to 


drive away.} In the civil law. The offense 
of stealing or driving away cattle. Dig. 47, 
14, 2. 


ABIGEI. Lat. Inthecivil law. Cattle 
stealers. Dig. 47, 14, 1,1. Calvin.; Bris- 
sonius; 4 Bl. Comm. 239. See AbiGeus. 


ABIGERE. Lat. (From ab, from; and 
agere, to drive.) In the civillaw. To drive 
away. Appliedto those who drove away sni- 
nals with the intention of stealing them. 
Dig. 47, 14, “De abigeis.” Applied, also, to 
the similar offense of cattle stealing on the 
borders between England and Scotland. 
Scott's Minstrelsy of the Scottish Border, In- 
tred. Append. No. vii. 


ABIGERE. To drive out; to expel by 
force; to produce abortion. Dig. 47, 11, 4. 


ABIGHUS. Lat. (From abigere, to drive 
away.) In the civil law, A stealer of cat- 
tle; one who drove or drew away (swbtrawit) 
cattle from their pastures, as horses or oxen 
from the herds, and made booty of them, and 
who followed this as a business or trade, 
Dig. 47, 14, 1, 1. The term was applied also 
to those who dreve away the smaller animals, 
as swine, sheep, and goats. Id. 47, 14, 1, 2. 
In the latter ease, it depended on the nezmber 
taken, whether the offender was fur (a com- 
mou thief) or abigews. Id. 47, 14,3. But 
the tuking of a singie horse or ox seems to 
have constituted the crime of abigeatus. Dig. 
47,14,3. And those who frequently did this 
were clearly abiged, though they took but an 
animal ortwoatatime. Id.47,14,3,2. See 
Cod. 9, 37; Nov. 22, c. 15, § 1. 


ABILITY. When a statute makes it a 
ground of divoree that the husband has neg- 
lected to provide for his wife the common 
necessaries of life, haying the ability to pro- 
vide the same, the word “ability” has refer- 
ence to the possession by the husband of tha 
means in property to provide such neevssa. 
ries, not to his capacity of acquiring such 
means by labor. 9 Cal. 476, 


fi 


ABISHERING 


ABISHERING, or ABISHERSING. 
Quit of amercements, It originally signified 
a forfeiture or amercement, and is more prop- 
erly mishering, mishersing, or miskering, ac- 
cording toSpelman. It has sinca been termed 
a liberty of freedom, becanse, wherever this 
word is used in a prant, the persons te whom 
the grant is made have the forfeitures and 
amercements of all others, and are themselves 
free from the contro] of any within their fee. 
Termes de la Ley, 7. 


ABJUDICATIO. In old English law. 
The depriving of a thing by the judgment of 
a court; a putting out of court; the same as 
forixjudicatio, forjudgment, forjudger. Co. 
Litt. 100e, 6; Towush. Pl. 49. 


ABJURATION OF ALLEGIANCE. 
One of the steps in the process of naturaliz- 
ing analien. Itconsists in a formal declara- 
tion, made by the party under outh before a 
competent authority, that he renounces and 
abjures all the allegiance and fidelity which 
he owes to the sovereign whose subject he hus 
theretofore been. 


ABJURATION OF THE REALM. 
In ancient English law. <A renunciation of 
one’s country, a species of self-imposed ban- 
ishment, under an oath never toreturn to the 
kingdom unless by permission. This was 
formerly allowed to criminals, as a means of 
saving their lives, when they had confessed 
their crimes, and fled tosanctuary. See 4 Ll. 
Comm. 882, 


ABJURE. To renounce, or abandon, by 
or upon vath. See ABdIURATION. 

“The decision of this court in Arthur v. Broad- 
nax, 3 Ala. S57, afflrms that if the husband hag «b- 
jwred the state, and remains abroad, the wife, 
nieanwhile trading as a feine svie, could recover 
on a note which was given to her as such. We 
must consider the term ‘abjure,’ as there used, as 
implying a total abundonment of the state; a de- 
parture from the state without the intention of re- 
turning, and not a renunciation of one’s country, 
upon an oath of perpetual banishment, as the term 
originally implied.” 15 Ala. 148. 

ABLE-BODIED. As used in a statute 
relating to service in the militia, this term 
doves not imply an absolute freedoin from all 
physieal ailment. It imports an absence of 
those palpable and visible defects which evi- 
dently incapacitate the person from perform- 
ing the ordinary duties of a soldier, 10 Vt, 
152. 

AULEGATI. Papal ambassadors of the 
second rank, who are sent toa country where 
there id not a nuncio, with a less extensive 
commission than that of a nuncio. 


8 


ABOUT 


ABLOCATIO. A letting out to hire, or 
leasing for money. Calvin. Sometimes used 
in the English form “ablocation.” 


ABMATERTERA. Lat. In the civil 
law. A great-great-grandmother’s sister, 
(abavie soror.) Inst. 3, 6, 6; Dig. 38, 10, 
3. Called matertera maxima. Id. 38, 10, 
10, 17. Called, by Bracton, abmatertera 
magna. Bract. fol. 6x. 


ABNEPOS. Lat. A great-great-grand- 
son. The grandson of a grandson or grand- 
daughter, Calvin. 


ABNEPTIS. Lat. A great-great-grand- 
daughter. The granddaughter of a grand- 
son or granddaughter. Calvin. 


ABODE, The place where a person 
dweils, 


ABOLITION. The destruction, abroga- 
tion, or extinguishment of anything; also the 
leave given by the sovereign or judges to a 
criminal accuser to desist from further pros- 
ecution. 25 Hen. VIII. c. 21. 


ABORDAGE. Fr. In French commer- 
cial law. Collision of vessels. 


ABORTION. In criminallaw. The mis- 
carriage or premature delivery of a woman 
who is quick with child. When this is 
brought abont with a malicious design, or 
for an unlawful purpose, it is a crime in law. 

The act of bringing forth what is yet im- 
perfect; and particularly the delivery or ex- 
pulsion of the human fw@fus prematurely, or 
before it is yet capable of sustaining life, 
Also the thing prematurely brought forth, or 
product of an unlimely process, Sometimes 
loosely used for the offense of procuring a 
premature delivery; but, strictly, the early 
delivering is the abortion; causing or procur- 
ing abortion is the full name of the offense. 
Abbott. 


ABORTIVE TRIAL. A term descrip- 
tive of the result when a case has gone off, 
and no verdict has been pronounced, without 
the fault, contrivance, or management of the 
parties. Jebb & B. dl. 


ABORTUS. Lat. The fruit of an abor- 
tion; the child born before its time, incapable 
of life. 


ABOUT. Nearly; approximating to; in 
the neighborhood of; not much more or less 
than. An expression constantly used where 
a time or sum cannot be precisely stated, im- 
porting the possibility of a small variation 
from it. 


ABOUTISSEMENT 


ABOUTISSEMENT. Fr. An abuttal 
or abutment. See Guyot, Répert. Univ. 
“Aboutissans.” 


ABOVE. (Lat. super, supra.) In prac- 
tice. Higher; superior. The court to which 
@ cause is removed by appeal or writ of error 
is called the court above. Principal; aa dis- 
tinguished from what is auxiliary or instru- 
mental. Bail to the action, or special bail, 
is otherwise termed bail above. 3 61. Comm. 
291. See BeLow. 


ABOVE CITED or MENTIONED. 
Quoted before. A figurative expression taken 
from the ancient manner of writing books on 
scrolls, where whatever is mentioned or cited 
liefore in the same roll must be above. Eneye 
Lond. 


ABPATRUUS. Lat. In the civil law. 
A. great-great-grandfather’s brother, (abavi 
Frater.) Inst. 3, 6,6; Dig. 38, 10,3. Called 
patruus maximus. 14.38, 10,10, 17. Called, 
by Bracton and Fleta, abpatruus magnus. 
Bract. fol. 686; Fleta, lib. 6, ¢. 2, § 17. 


ABRIDGH. To reduce or contract; usn- 
ally spoken of written language. 

la copyrightiaw, ta abridge means to epitomize; 
to reduce; to contract. Ji implies preserving the 
substance, the essence, of a work, in language 
suited to sucha purpose. In making extracts there 
is no condensation of the author's language, and 
henee no abridgment. Toabridge requires the ex- 
ercise of the mind; itis not copying. Between a 
compilation wand an abridgment there is a clear dis- 
tinction, A compilation consists of selected ex- 
tracis from different authors; au abridgment isa 
condensation of the views of one author. 4 Me- 
Lean, 805, 310. 

In practice. To shorten a declaration or 
count by taking away or severing some of the 
substance of it. Brooke, Abr. “ Abridg- 
ment.” 


ABRIDGMENT. An epitome or com- 
pendium of another and larger work, where- 
in the principal ideas of the larger work are 
summarily contained. 

Abridgments of the law are brief digests 
of the law, arranged alphabetically. The old- 
est are those of Titzherbert, Brooke, and 
Rollo; the more modern those of Viner, 
Comyns, and Bacon. (1 Steph. Comm. 51.) 
The term “digest” has now supplanted that 
of “abridgment.” Sweet. 


ABRIDGMENT OF DAMAGES. The 
right of the court to reduce the damages in 
serluin cases. Vide Brooke, tit. “ Abridg- 
ment.” 


9 


ABSENCE 


ABROGATE. To annul, repeal, or de 
stroy; fo annul or repeal an order or rule is- 
stied by a subordinate authority; to repeal a 
former law by legislative act, or by usage. 


ABROGATION. The annulment of a 
law by constitutional authority. It stands 
opposed te vogation; and is distinguished 
from derogation, which implies the taking 


| away only some part of a law; from subro- 


gation, which denotes the adding a clause to 
it; from dispensation, which only sets it 
aside In a particular instance; and from a@n- 


| tiguation, which is the refusing to passa 


law. Eneye. Lond. 


ABSCOND, Togo inaciandestine man- 
ner out of the jurisdiction of the courts, or 
to lie concealed, in order fo avoid their pro- 
cess. 

To hide, conceal, or absent oneself clan- 
destinely, with the intent to avoid legal pro- 
cess. 2 Sneed, 153. See, also, 8 Kan. 262; 1 
Ala. 200. 


ABSCONDING DEBTOR. 
absconds from his creditors. 

An absconding debtor is one who lives 
without the state, or who has intentionally 
concealed liimself from his creditors, or with- 
drawn himself from the reach of their suits, 
with intent to frustrate their just demands. 
Thus, if a person departs from his usual resi- 
dence, or remains absent therefrom, or con- 
ceals himself in his house, so that he cannot 
be served with process, with intent unlaw- 
fully to delay or defraud his creditors, he is 
an absconding debtor; but if hedeparts from 
the state or from his usual abode, with the 
intention of again returning, and without any 
fraudulent design, he hus not absconded, nor 
absented himself, within the intendment of 
the law. 5 Conn. 121. 

A party may abscomd, and subject himself 
to the operation of the attachment law against 
absconding debtors, without leaving the lim- 
its of the state, 7 Md. 209, 

A debtor who is shut up from his creditors 
in his own house isan absconding debtor, 2 
Root, 133. 


ABSENCE. The state of being absent, 
removed, or away from one’s domicile, or 
usual place of residence, 


Absence is of a fivefold kind: (1) A neressary 
absence, ag in banished or transported persous; 
this isentirely necessary, (2) Necessary and vol- 
untary, a8 upon the account of the commonwealth, 
or in the service of the church, (8) A probuble 
absevee, according to the civilians, as that of stu- 
Gents on the score of study. {4) Entirely volwen- 
tary, on account of trade, merchandise, and the 


One who 


Ni 


ABSENCE 


like. (5) Absence cum dolo et culpa, as not ap- 
pearing to a writ, swubpeena, citation, etc., or to 
delay or defeat creditors, or avoiding arrest, either 
on civil or criminal process. Avyliffe. 

Where the statute allows the vacation of a 
judgment renlered against a defendant “in 
his absence,” the term “absence” means non- 
appearance to the action, and not merely that 
the party was not present in court. 12 Neb. 
423, 11 N. W. ep. 867. 


ABSENCE. In Scotch law. Want or 
default of appearance. A decree is said to be 
in absence where the defender (defendant) 
does not appear. Ersk. Inst. bk. 4, tit. 3, § 6. 
See DECREET. 


ABSENTE, Lat. (Abi. of absens.) Be- 
ing absent. A common term in tle old re- 
porls. “Thethree justices, cbsente North, C. 
J., were clear of opinion.” 2 Mod. 14. 


ABSENTEE. One whodweills abroad; a 
landlord who resides in a country other than 
that from which he draws his rents, The 
discussions on the subject have generally had 
reference to Ireland. McCul. Pol. Eeon.; 33 
Brit. Quar. Rev. 455. 

One who is absent from his usual place of 
residence or domicile. 


In Louisiana law and practice. A 
person who has resided in the state, and hag 
departed without leaving any one to repre- 
sent him. Also, a person who never was 
domiciliated in the state and resides abroad. 
Civil Code La. art. 3556; 18 La. Ann. 696; 30 
La. Ann. 880. 


ABSENTEES, or DES ABSENTEES. 
A parliament so ealled was held at Dublin, 
10th May, 8 Tlen. VIII. It is mentioned in 
letters patent 29 Hen. VIII. 


Absentem accipere debemus eum qui 
non est eo loci in quo petitur. We 
ought to consider him absent who is not in 
the place where heisdemanded. Dig. 50, 16, 
198. 


Absentia ejus qui reipublicse caus& 
abest, neque ei neque alii damnosa esse 
debet. The absence of him who is away in 
behalf of the republic (on business of the 
state) ought neither to be prejudicial to him 
nor to another. Dig. 50, 17, 140. 


ABSOILE—ASSOILE. To pardon or 
set free; used with respect to deliverance 
from excommunication. Cowell; Keiham. 


Absoluta seutentia expositore non in- 
diget. An absolute sentence or proposition 


10 


we = 


ABSOLUTE PROPERTY. 


(one that is plain without any scruple, or ab- 
solute without any saving) needs not an ex- 
positor. 2 Lust. 533. 


ABSOLUTE. Unconditional; complete 
and perfect in itself, without relation to, or 
dependence on, other things or persons,—as 
an absolute right; without condition, exeep- 
tion, restriction, qualification, or limitation, 
—as an aisolute conveyance, an absolute es- 
tate; final, peremptory,—as an absolute rule 


ABSOLUTE CONVEYANCE, <A con- 
veyance by which the right or property in a 
thing is transferred, free of any condition or 
qualitication, by which it might be defeated 
or changed; ag an ordinary deed of Jands, in 
contradistinetion to a mortgage, which is a 
conditional conveyance. Burrill. 


ABSOLUTE COVENANT, A covenant 
which is unconditional or unqualified. 


ABSOLUTH ESTATE. An estate in 
lands not subject to be defeated upon any con- 
dition. 

In this phrase the word “absolute” is not 
used legally to distinguish a fee from a life- 
estate, but a qualified or conditional fee from 
afee-simple. 71 Pa, St. 483. 


ABSOLUTE INTEREST. That is an 
absolute interest in property which is so com- 
pletely vested in the individual that he can by: 
no contingency be deprived of it without his 
own consent. So, too, he is the owner of 
such absolute interest who must necessarily 
sustain the loss if the property is destroyed. 
The terms “interest” and “title” are not sy- 
nonymous. A mortgagor in possession, anda 
purchaser holding under a deed defectively 
executed, have, both of them, absolute, as 
well as insurable, interests in the property, 
though neither of them has the legal title. 
“Absolute” is here synonymous with “vest- 
ed," and is used in contradistinction to con- 
tingent or conditional. 29 Conn. 20. 


ABSOLUTE LAW. Thetrueand proper 
law of nature, immutable in the abstract or 
in principle, in theory, but not in application; 
for yery often the object, the reason, situa- 
tion, and other circumstances, may vary ita 
exercise and obligation. 1 Steph. Comm, 21 
et seq. 


ABSOLUTE PROPERTY. Absolute 
property is where a man hath solely and ex- 
clusively the right, and also the occupation, 
of movable chattels; distinguished from a 
qualified property, as that of a bailee. 2 
Bl. Comm. 388; 2 Kent, Comm. 347. 


ABSOLUTE RIGHTS 


ABSCLUTE RIGHTS. Absolute rights 
are such as appertain and belong to particular 
persons merely as individuals or single per- 
sons, as distinguished from relative rights, 
which are incident to them as members of so- 
ciety. 1 Bl. Comm. 123; 1 Chit. Pl. 364; .1 
Chit. Pr. 32. 


ABSOLUTE RULE. In practice. A 
rule of court commanding something to be 
done asolutely, and at all events, as distin- 
guished from a rule nisi, wich commands 
something to be done, wnless cause be shown 
against it; or, as the latter is more commonly 
called, arule to show cause why a thing should 
not bedone. 3 Steph. Comm. 680. 


ABSOLUTE WARRANDICE. In 
Scotch law. A warranting or xssuring of 
property against all mankind. It is, in ef- 
fect, w covenant of title. 


ABSOLUTELY. Completely; wholly; 
without qualification; without reference or 
relation to, or dependence upon, any other 
person, thing, or event. 


ABSOLUTION. In the civil law. A 
sentence whereby a party accused is declared 
innocent of the crime laid to his charge. 

In canon law. A juridical act whereby 
the clergy declare that the sins of such as are 
penitent are remitted. 

In French law. ‘The dismissal of an ac- 
cusation, The term “acquitment” is em- 
ployed when the accused is declared not 
guilty and “absolution” wlien he is recog- 
nized as guilty but the act is not punishable by 
law, or he is exonerated by some defect of in- 
tention or will. Merl. Repert.; Bouvier. 


ABSCLUTISM. Any system of govern- 
ment, be it a monarchy or democracy, in 
which one or more persons, or a class, govern 
absolutely, and at pleasure, without check or 
restraint from any law, constitutional de- 
rice, or co-ordinate body. 


ABSOLVITOR. In Scotch law. <An ac- 
quittal; a decree in favor of the defender in 
any action. 


ABSQUE. Without. Occurs in phrases 
taken from the Latin; such as the following: 


ABSQUE ALIQUO INDE REDEN- 
DO. (Without rendering anything there- 
from.) A grant from the crown reserving 
no rent, 2 Rolle, Abr. 502. 


ABSQUEH CONSIDERATIONE CU- 
RIA. In old practice. Without the con- 


Ji! 


a 


ABSTRACT OF TITLE 


sideration of the court; without judgment. 
Fleta, lib. 2, ¢. 47, § 18. 


ABSQUE HOC. Without this. These 
are technical words of denial, used in plead- 
ing at common law by way of special trav- 
erse, to introduce the negative part of the 
plea, following the affirmative part or induce- 
ment. 


ABSQUE IMPETITIONE VASTI. 
Without impeachment of waste; without ac- 
countability for waste; without liabilily to 
suit for waste. A elatse anciently often in- 
serted in leases, (as the equivalent English 
phrase sometimes is,) signifying that the ten- 
ant or lessee shall not be liable to suit, (¢mpeti- 
tio,) or challenged, or called to account, for 
committing waste. 2 Bl. Comm. 283; 4 
Kent, Comm. 78; Co. Litt. 220a; Litt. $352. 


ABSQUE TALI CAUSA, (Lat. with- 
out such cause.) Formal words in the now 
obsolete replication de injurta. Steph. Pl. 
191. 


ABSTENTION. In French law. Keep- 
ing an heir from possession; also tacit renun- 
ciation of a succession by an heir. Merl. 
Repert. 


ABSTRACT. An abstract is a less quan- 
tity containing the virtue and force of a 
greater quantity. A transcript is generally 
delined a copy, and is more comprehensive 
than an abstract. 105. C. 283, 


ABSTRACT OF A FINE. In old con- 
veyancing, One of the parts of a fine, being 
an abstract of the writ of covenant, and the 
concord, naming the parties, the parcels of 
land, and the agreement. 2 Bl. Comm. 351; 
Shep. Touch. 8. More commonly called the 
“note” of the fine. See FINE; Concorp, 


ABSTRACT OF TITLE. A condensed 
history of the title to land, consisting of a 
synopsis or summary of the material or op- 
erative portion of all the conveyances, of 
whatever kind or nature, which in any man- 
ner affect said land, or any estate or interest 
therein, together with a statement of allliens, 
charges, or liabilities to which the same may 
be subject, and of which it is in any way 
material for purchasers to be apprised. Wary, 
Abst. § 2. 

Au abstract of a judgment or title is not the 
same as a copy of a judgment or title. An “ab 
stract of a title” is a brief account of all the deeds 
upon which the title rests; a synopsis of the dis- 
tinctive portions of the various instruments which 
constitute the muniments of title. See Prest. 
Abst.; Whart. Law Dict. (2d Lond. Ed.;) Bouv. 


a] 


i 


ABUNDANS 12 


Law Dict. 47. Aa abstract, ordinarily, meaus a. 
mere brief. and not a copy of that from which it is 
taken. 7 W. Va. 413, 


Abundans cautela non nocet. Ex- 
treme caution does no harm. 11 Coke, 66. 
This principle is generally applied to the con- 
struction of instruments in which superflu- 
ous words have been inserted mere clearly to 
express ble intention. 


ABUSE, v. To make exeessive or im- 
proper use of a thing, or to employ it in a 
manner contrary to the natural or legal rules 
for its use; to make an extravagant or excess- 
ive use, as to abuse one’s authority. 

In the civil law, the borrower of a chattel 
which, in ita nature, cannot be used without 
consuming it, such a8 Wine or grain, is said 
to abuse the thing borrowed if he uses it. 


ABUSE, n. ‘Everything which is con- 
trary to good order established by usage. 
Merl. Repert. Departure from use; immod- 
erate or improper use. 

The “abuse or misuse” of its franchises 
by a corporation signifies any positive act in 
Viulation of the charter and in derogation of 
public right, willfully done, or caused to be 
done, Ly those appointed to manage the ven- 
eral concerns of the corporation. 3 Pittsb. 
Ki. 20; 26 Pa. St. 318. 

Abuse of judicial discretion, and especially 
gross and palpable abuse of discretion, which 
are the terms ordinarily employed to justify 
an interference with the exercise of discre- 
tionary power, implies not merely error of 
judgment, but perversity of will, passion, 
prejudice, partiality, or moral celingueney, 
The exercise of an honest judgment, lowever 
erroneous it may appear to be, is not an abuse 
of discretion. 29 N. Y. 431. 


ABUSE OF A FEMALE CHILD. An 
injury to the genital organs in an attempt at 
carnal knowledge, falling short of actual 
penetration, 58 Ala. 376. 


ABUSE OF DISTRESS. The using an 
animal or chattel distrained, which maies 
the distrainer liable as for a conversion. 


ABUSE OF PROCESS. There is said 
to be an abuse of process when an adversary, 
through the malicious and unfounded use of 
some regular legal proceeding, obtuins some 
advantage over his o)ponent. Wharton. 

A tnalicious abuse of legal process is where 
the party amploys it for some uniawful ob- 
ject, not the purpose which it is intended by 
the law to effect; in other words, a perver- 
sion of it. 64 Pa. St. 285. 


ACCELERATION 


ABUT. To reach, to touch. In old law, 
the ends were said to abut, the sides to ad- 
join. Cro. Jae. 184, 


ABUTMENTS. The ends of a bridge, or 
those parts of it which touch the land. 


ABUTTALS. (From abut, q. v.) Com- 
monly defined “the buttings and bonndings of 
lands, east, west, north, and south, showing on 
what other lands, highways, or places they 
abut, or are limited and bounded.” Cowell; 
Tom). 


AC ETIAM. (Lat. Andalso.) Words 
used to introduce the statement of the real 
eause of action, in those cases where ib was 
necessary to allece a fictitious cause of action 
to give the court jurisdiction, and also the real 
caus6, in compliance with the statutes. 


AC SI. (Lat. Asif.) Townsh, Pl. 23, 
27. These words frequently oceurin old En- 
glish statutes. Lord Bacon expounds their 
meaning in the statute of uses: “Thestatute 
gives entry, not simpliciter, but with an ac 
si.” Bae. Read. Uses, Works, iv. 195. 


ACADEMY. In its original meaning, an 
association formed for mutual improvement, 
or fur the advancement of science or art; in 
later use, @ species of educational institution, 
ofa grade between the common school and 
the college. 


ACAPTE, InFrenchfendallaw. Aspe- 
cies of relief; a seignorial right due on every 
change of a tenant. A feudal right which 
formerly prevailed in Languedoc and Guy- 
enne, being attached to that species of herita- 
ble estates which were granted on the con- 
tract of emphyteusis. Guyot, Inst. Feod. c. 
5, § 12, 

ACCEDAS AD CURIAM. An original 
writ out of chancery, directed to the sheriff, 
for the removal of a replevin suit from a 
hundred court or court baron to one of the 
superior courts. See Fitzh. Nat. Brev. 18; 
8 Bi, Comm. 34; 1 Tidd, Pr. 38. 


ACCHDAS AD VICH COMITEM. L. 
Lat. (You go to the sheriff.) A writ for- 
merly directed to the coroners of a county in 
Engiand, commanding them to go to the sher- 
iff, where the latter had suppressed and neg- 
lected to return a writ of pore, and to deliver 
a writ te him requiring him to return it. 
Reg. Orig. 83. See Pong. 


ACCHLERATICN. The shortening of 
the time for the vesting in possession of an 


| expectant interest. 


a 


ACCEPT 


ACCEPT, To receive with approval or 


18 


ACCESS 


Conditional, An engagement to pay the 


satisfaction; to receive with intent to retain. | bill on the happening of a condition. 


Also, in the capacity of drawee of a bill, te 
recognize the draft, and engage tovpay it when 
due. 


ACCHPTANCE. The taking and receiv- 
ing of anything in good part, and as it were 


a tacit agreement to a preceding act, which | 


might have been defeated or avoided if such 
acceptance had not been made. Brooke, Abr. 

The act of a person to whom a thing is of- 
fered or tendered by another, whereby he re- 
ceives the thing with the intention of retain- 
ing it, such intention being evidenced by a 
sufficient act. 

The acceptance of goods sold under a con- 
tract which would be void by the statute of 
fruuds without delivery and acceptance in- 


volves something more than the act of the | 


vendor in the delivery. It requires that the 
yeniee should also act, and that his act 
should be of such a nature as to indicate 
that he receives and accepis the goods deliv- 
ered us his property. He must receive and 
retain the articles delivered, intending there- 
by to assume the title to them, to constitute 
the acceptance mentioned in thestatute. 40 
N.Y. 524. See, also, 10 Mete. 132. 


In marine insurance, the acceptance of 
an abandonment by the underwriter is his 
assent, either express or to be implied from 
the surrounding circumstances, to the sufli- 
ciency and reguiarity of the abandonment. 
Its effect is to perfect the insured's right of 
action as for a total loss, if the cause of loss 
and cirguistances have been truly disclosed. 
Rup. & Law. 


Acceptance of a bill of exchange. In 
mercantile law. The act by which the per- 
son on whom a bill of exchange is drawn 
(called the “drawese”) assents to the request 
of the drawer to pay it, er, in other words, 
engages, or mikes himself liable, to pay it 
when due. 4 Mast, 57, 72; 2.61. Comm. 409. 
It may be by parol or in writing, and eilher 


general or special, absolute or conditional; | 


and it may be impliedly, as well as expressly, 
given, 3 Kent, Comm. 83,85; Story, Bills, §§ 
288, 251. But the usual and regular mode 
of acceptance is by the drawee’s writing 
across the face of the bill the word “accept- 
ance,” and subscribing his name; after which 
he is termed the accepior, Id. § 243. 

The following are the principal varieties of 
acceptances: 

Absulute, Amn express and positive agree- 
ment to pay the bill according to its tenor. 


apress. An absolute acceptance. 

Implied. An acceptance inferred by law 
from the acts or conduct of the drawee, 

Partial. An acceptance varying from the 
tenor of the biil. 

Qualified, One either conditional or par- 
tial, and which introduces a yariation in the 
sum, time, mode, or place of payment. 

Special, One which specifies a particular 
place for payment. 

Supra protest. An acceptance by a third 
person, after protest of the bill for non-ac- 


_ ceptance by the drawee, to save the honor of 


the drawer or some particular indorser, 


ACCEPTANCE AU BESOIN. Fr. In 
French law, Acceptance in case of need; 
an acceptince by one on whoma bill is drawn 
aw besoin, that is, in case of refusal or fail- 
ure of the drawee toaccept, Story, Bills, §§ 
65, 254, 255. 


ACCEPTARE. Lat. In old pleading. 
To accept. Acceptavit, he accepted. 2 
Strange, 817. Non acceptavit, he did not 
accept. 4 Man. & G. 7. 

In the civil law. To accept; to assent; 
to assent to a promise made by another. Gro. 
de J. B. lib. 2, ¢. 11, § 14. 


ACCEHPTEHUR PAR INTERVEN- 


TION. In French law. Acceptor of a bill 
for honor. 
ACCEPTILATION. In the civil and 


Seoteh law. A release made by a creditor to 
his d-btor of his debt, without reeciving any 
consideration. Ayl. Pand. tit. 26, p.570. It 
is a species of donation, but not subject to 
the forms of the latter, and is valid unless in 
fraud of creditors. Merl. Repert. 

The verhal extinction of a verbal contract, 
with a declaration that the debt has been paid 
when it has not; or the acceptance of some- 


| thing merely imaginary in satisfaction of a 
| verbal contract. 


sanders’ Just. Inst. (5th 
Ed.) 386. 

ACCEPTOR. The person who accepts a 
bill of exchange, (generally the drawee,) or 


who engages to be primarily responsible for 
its payment. 

ACCEPTOR SUPRA PROTEST. One 
who accepts a bill which has been protested, 
for the honor of the drawer or any one of the 
indorsers. 


ACCESS. Approach; or the means, pow- 
er, or opportunity of approacking. Some 


ACCESS 


times importing the occnrrence of sexual in- 
tercourse; other wise as importing opportunity 
of communication for that purpose as between 
husband and wife, 

In real property law, the term “access” 
denotes the right vested in the owner of land 
which adjoins a road or other highway-to go 
and return from lis own Jand to the high- 
way without obstruction. 


ACCESSARY. In criminal law. Con- 
tributing to or aiding in the comission of a 
crime, One who, without being present at 
the commission of a felonious offense, be- 
comes guilty of such offense, not as a chief 
actor, but as a participator, as by command, 
advice, insligation, or concealment; either 
before or after the fact or commission; a 
particeps eriminis. 4 Bl. Comm. 35: Cowell. 

An aceessary is one who is not the chief 
actor in the offense, nor present at its per- 
formance, but in some way concerned there- 
in, either before or after the act committed. 
Code Ga. 1882, § 4306. 


ACCHSSARY AFTER THR FACT. 
An accessury after the fact ig a person who, 
having full knowledge that a crime has been 
sommitted, conceals it from the magistrate, 
and harbors, assists, or protects the person 
charged with, or convicted of, the crime. 
Code Ga. 1882, § 4808. 

All persons who, after the commission of 
any felony, conceal or aid the offender, with 
knowledge that he has committed a felony, 
and with intent that he may avoid or escape 
from arrest, trial, conviction, or punishment, 
are acecssaries, Pen. Code Dak. § 23. 

All persons who, after full knowledge that 
a felony has been committed, eunceal it from 
the magistrate, or harbor and protect the per- 
son charged with or convicted thereof, are 
accessaries. Pen. Code Cal. § 32. 

An aceessary after the fact ia a person 
who, knowlng a felony to have been commit- 
ted by another, receives, relieves, comforts 
or assists the felon, in order to enable him 
to escape from punishment, or the like. 1 
Russ, Crimes, 171; Steph. 27; 389 Miss. 702. 


ACCESSARY BEFORE THE FACT. 
In criminal law. One who, being absent at 
the time a crime is committed, yet procures, 
counsels, or commands another to commit it; 
and, in this case, absence is necessary to con- 
stitute him an accessary, for, if he be present 
at any time during the transaction, he is 
guilty of the crime as principal. Piow, 97. 
1 Ilale, P. C. 615, 616; 4 Steph. Comm. 90, 
note 2. 


14 


ACCESSION, DEED OF 


An accessary before the fact is one who. 
being absent at the time of the crime com- 
mitted, doth yet procure, counsel, or com- 


| mand another to commit acrime. Code Ga. 
1882, § 4307. 
ACCESSARY TO ADULTERY. A 


phrise used in the law of divoree, and de- 
Tived from the criminallaw. Itimplies more 
than connivance, which is merely knowledge 
with consent. A conniver abstains from in- 
terference; an accessary directly commands, 
advises, or procures the adultery. A husband 
or wife who has been accesgary to the adul- 
tery of the other party to the marriage can- 
not obtain a divorce on the ground of such 
adultery. 20 & 21 Vict. c. 85, §3 29, 31. See 
Browne, Div. 


ACCESSIO. In Roman law. <An in- 
crease or addition; that which lies next toa 
thing, and is supplementary and necessary 
to the principal thing; that which arises or 
is produced from the principal thing. Calvin. 
Lex, Furid. 

One of the modes of acquiring property, 
being the extension of ownership over that 
which grows from, or is united to, an article 
which one already possesses. 


ACCHSSION. The right to all which 
one’s own property produces, whether that 
property be movable or iminovable; and tue 
right to that which is united to it by acces- 
sion, either naturally or artificially. 2 Kent, 
360; 2 Bl. Comm. 104, 


A principle derived from the civil law, by which 
the owner of property becomes entitled to all which 


| it produces, and to all thatis added or united to it, 


either naturally or artificially, (that is, by the labor 
or skill of another,) eyen where such addition ex- 
tends to a change of form or materials; and by 
which, on the other hand, the possessor of prop- 
erty becomes entitled to it, a3 against the original 
owner, where the addition made to it by his skill 
and labor is of greater value than the property 
itself, or where tlh change effected in its form is 
so great as to reniler it impossible to restore it to 
its original shape. Burrill. 

In international law. Tke absolute or 
conditional acceptance by one or several 
states of a treaty already concluded between 
other sovereignties. Merl. Repert. Alsothe 
commencement or inauguration of a sover- 
eign’s reign, 


ACCESSION, DEED OF. In Scotch law. 
A deed executed by the creditors of a bank- 
Tupt or insolvent debtor, by which they ap- 
prove of a trust given by their debtor for the 
general behoof, and bind themselves to con- 
cur in the plans proposed for extricating his 
affairs. Bell, Dict. 


ACCESSORIUM 


Accessorium non ducit, sed sequitur 
suum principale. Co. Litt. 152. That 
whieh is the accessory or incident does not 
lead, but follows, its principal. 


Accessorius sequitur naturam sui 
principalis. An accessary follows the nat- 
ure of his principal. 3 Inst. 1389. One who 
ig accessary to a crime exnnot be guilty of a 


higher <legree of crime than his principal, 


ACCESSORY. Anything which is joined 
tv another thing as an ornament, or to ren- 
der it more perfect, or which accompanies it, 
or is connected with it as an incident, or as 
subordinate to it, or which belongs to or 
with it. 

In criminal law. An accessary. The lat- 
ter spelling is preferred. See that title. 


ACCESSORY ACTION. In Seoteh 
practice. An action which is subservient or 
auxiliary to another. Of this kind are ac- 
tions of “proving the tenor,” by which lost 
deeds are restored; and actions of “tran- 
simpts,” by which copies of principal deeds 
are certified. Bell, Dict, 


ACCESSORY CONTRACT. In the 
civil law. <A contract which is incident or 
wuxiliary to another or principal contract; 
such as the engagement of a surety. Poth. 
Obl. pt. 1, ¢. 1, § 1, art. 2. 

A principal contract is one entered into by 
both partivs on their own accounts, or in the 
several qualities they assume. An accessory 
contract is made for assuring the performance 
of a prior contract, either by the same parties 
or by others; such as suretyship, mortgage, 
and pledge. Civil Code La, art. 1771. 


ACCHSSORY OBLIGATION. In the 
Civil law. An obligation which is incident 
to another or principal obligation; the vbli- 
gationof asurety. Poth. Obl. pt.2,¢.1, §6. 

In Scotch jaw. Obligations to anteced- 
ent or primary obligations, such as obliga- 
tions to pay interest, ete. Ersk. Inst. iib. 3, 
tit. 3, § 60. 


ACCIDENT. An unforeseen event, oc- 
curring without the will or design of the 
person whose mere act causes if; an unex- 
pected, unusval, or undesigned occurrence; 
the elfect of an unknown cause, or, the cause 
being Known, an unprecedented consequence 
of it; a casualty. 

There is nothing in the definition of the 
word “aecident” that excludes the negligence 
of the injured party as one of the elements con- 
tributing to produce the result. A very large 


15 


ACCOMENDA 


proportion of those events which are univers- 
ally called “accidents” happen through some 
carelessness of the party injured, which eon- 
tributes to produce them. Thus, men are in- 
jured by the careless use of fire-urms, of ex- 
plosive substances, of machinery, the careless 
management of horses, and in a thousand 
ways, where if can readily be seen afterwards 
that a little greater care on their part would 
have prevented it. Yetsuch injuries, having 
been unexpected, and not caused intenlionally 
or by design, are always called “accidents,” 
and properly so. 24 Wis. 28. 

In equity practice. Such an unforeseen 
event, misfortune, loss, act, or omission as is 
not the result of any negligence or misconduct 
in the party. Fran. Max. 87; Story, Eq. Jur. 
§ 78. 

The meaning to be attached to the word 
“accident,” in relation to equitable relief, is 
any unforeseen and undesigned event, pro- 
ductive of disadvantage. Wharton. 

An accident relievable in equity is such an 
occurrence, not the resnit of negligence or 
misconduct of the party seeking relief in re. 
lation to a contract, as was not anticipated 
by the parties when the same was entered 
into, and which gives an undueadvantage Lo 
one of them over another in # court of law. 
Code Ga. 1882, § 3112. 


Accipere quid ut justitiam facias, non 
est tam aecipere quam extorquere. To 
accept anything as a reward for doing justice 
is rather extorting than accepting. Lofft, 72. 


ACCIPITARE. To pay retief to lords of 
manors. Capitati domino accipitare, t.e., to 
pay a relief, homage, vr obedience to the 
chief lord on becoming his vassal. Fleta, lib. 
2; &. 50, 


ACCOLA. In the civil law. One wlio 
inhabits or occupies land near a place, as one 
who dwells by «a tiver, or on the bank of a 
river. Dig. 43, 15, 3, 6. 

In feudal law. A husbanidman; anagri- 
cultural tenant; a tenant of a manor. Spel- 


man. A name given toa class of villeins in 
Italy. Barr, St. 602. 
ACCOMENDA,. In maritimes law. A 


eontract between the owner of goods and the 
master of a ship, by which the former in- 
trusts the property te the latter to be sold by 
him on their joint account. 

In such case, two contracts take place: First, 
the contract called mandatum, by which the own- 
er of the property gives the master power to dis- 
pose of it; and the contr.ct of parinersbip, in 
virtue of which the profits are to be divided be- 


ACCOMMODATION 


tween them. One party runs the risk of losing 
his capital; the other, his labor. If the sale pro- 
duces no more than first cost, the owner takes all 
vhs proceeds. It is only the profits which are to 
be divided. Emerig. Mar, Loans, § 5. 


ACCOMMODATION. Anarrangement 
or engagement made as a favor to another, 
not upon aconsideration received; something 
done to oblige, usually spoken of a loan of 
money or commercial paper; also a friendly 
agreement or composition of differences. Ab- 
bott. 


ACCOMMODATION LANDS. Land 
bought by a builder or speculator, who erects 
houses thereon, and then leases portions 
thereof upon an improved ground-rent. 


ACCOMMODATION PAPER. Anac- 
commodation bill or note is one to which the 
accommodating party, be he acceptor, drawer, 
or indorser, has put his name, without con- 
sideration, for the purpose of benefiting or 
accommodating some other party who desires 
to raise money on it, and is to provide for the 
bill when due. 


ACCOMMODATION WORKS. Works 
which a railway company is required to make 
and maintain for the accommodation of the 
owners or occupiers of land adjoining the 
railway, e. g., gates, bridges, culverts, fences, 
ete, 8 Vict. c. 20, § 68. 


ACCOMPLICE, (From ad, to, and com- 
plicare, to fold up, or wrap together.) In 
criminal law. One who is joined or united 
with another; one of several concerned in a 
felony; an associate in a erime; one who co- 
operates, aids, or assists in committing it. 
Yomlins; Jacob. ‘This term includes all the 
participes eriminis, whether considered in 
strict legal propriety as principals or as ac- 
cessaries, 1 Russ. Crimes, 26. It is gener- 
ally applied to those who are admitted to give 
evidences against their fellow criminals. 4 
Bl. Comm. 331; Hawk. P. C. bk. 2, ¢. 37, 
St 

One who is in some way concerned in the 
commission of a crime, though not as a prin- 
cipal; and this includes ali persons who have 
been concerned in ils commission, whether 
they are considered, in strict legal propriety, 
as principals in the first or second degree, or 
merely as accesgaries before or after the fact. 
47 Ill. 152; 71 Cal. 20,11 Pae. Rep. 799. 


ACCORD, ». In practice. To agree or 
concur, as one judge,with another. “I ac- 
eord.” Eyre, C. J.,12 Mod.7. “The rest 
accorded.” 7 Mod. d6él. 


16 


eee ne. ee —eeE a a ‘an.[‘SS.essess=s=s SSS ee eS 


ACCOUCHEMENT 


ACCORD, n. A satisfaction agreed upon 
between the party injuring and the party 
injured which, when performed, is a bar to 
all actions upon this account. 75 N. Y. 
576. 


ACCORD AND SATISFACTION, An 
agreement between two persons, one of 
whom has a right of action against the other, 
that the latter showld do or give, and the 
former accept, something in satisfaction of 
the right of action different from, and usu- 
ally less than, what might be legally eniorced. 
When the agreement is executed, and satis- 
faction has been made, it is called “accord 
and satisfaction.” 

An accord and satisfaction may be briefly 
defined as “the settlement of a dispute or the 
satisfaction of a claim, by an executed agree- 
ment between the party injuring and the 
party injured;” or, to give a delinition indi- 
eating more definitely its peculiar nature, it 
is “something of legal value to which the 
creditor before had no right, received in full 
satisfaction of the debt, without regard to 
the magnitude of the satisfaction.” 15mith, 
Lead. Cas. (10th Amor. Ed.,) 558; 43 Conn. 
462. 

Accord and satisfaction is the substitution 
of another agreement between the parties in 
satisfaction of the former one, and an execu- 
tion of the latter agreement. Such is the 
definition of this sort of defense, usually 
given. Buta broader application of the doc- 
trine lias been made in later times, where 
one promise or agreement is set up in sat- 
isfaction of another. ‘The rule is that an 
agreement or promise of the same grade will 
not be held to be in satisfaction of a prior 
one, unless it has been expressly accepted as 
such; as, where a new promissory note has 
been given in lien of a former one, to have 
the elfect of a satisfaction of the former, it 
must have been accepted on an express agree- 
ment to that effect. 50 Miss. 257. 

An accord is an agreement to accept, in 
extinction of an obligation, something dif- 
ferent from or less than that to which the 
person agreeing to accept is entitled. Civil 
Code Cal. § 1521; Civil Code Dak. § 859. 


ACCORDANT. Fr. and Eng. Agree- 
ing; concurring. “Baron Parker, accord- 
ant,” Hardr. 93; “Holt, C. J., accordant,” 
6 Mod. 299; “Powys, J., aecord,” “Powell, 
J., accord,” Id. 298. 


ACCOUCHEMENT. The act of a 
woman in giving birth toa child. The fact 
of the accouchement, proved by a person who 


ACCOUNT 


was present, is olten important evidence in 
proving the parentage of a person. 


ACCOUNT. a uetuled statement of the 
mutual demands im the nature of debt and 
credit between parties, arising out of con- 
tracts or some fiduciary relation. 1 Mete. 
(Mass.) 216; 1 Hemp. 114; 32 Pa. St. 202. 

A statement in writing, of debts and cred- 
its, or of receipts and payments; a list of 
items of debts and credits, with their respect- 
ive dates. 5 Cow. 593. 

The word is sometimes used to denote the 
balance, or the right of action for the balance, 
appearing due upon a statement of dealings; 
as where one speaks of an assignment of ac- 
counts; but there is a broad distinction be- 
tween an account and the mere balance of an 
account, resembling the distinction in logie 
between the premises of an argument and the 
conclusions drawn therefrom. A balanceis 
but the conclusion or result of the debit and 
eredit sides of anaccount. It implies mutual 
dealings, and the existence of debt and credit, 
without which there could bene balance. 45 
Mo. 574, 

The word is often used in the sense of 
“behalf,” or “charge;” as in saying that an 
agent acts upon account of his principal; 
that a policy ig issued on account of whom it 
may concern, Abbott. 


ACCOUNT. Inpractice. <A writ orac- 
tion at common law, (sometimes called “ac- 
count render,”) which lies against a per- 
son who, by reason of his office or business as 
bailiff, receiver, or guardian, ought to render 
an account to another, but refuses to do so. 
Fitzh. Nat. Brey. 116; Co. Litt. 172. 

Account is a writ or action brought against 
& person who, by means of his office as a 
guardian, or for some business he has under- 
taken as an agent, or some money he has re- 
ceived for another, ought to renderan account 
to him, and refuses to do it; and hethat calls 
him toan account shall recover of him not only 
what shall be found due, but also damages 
for the wrong done him. 1 Amer. & Eng. 
Ene, Law, 128. 


ACCOUNT-BOOK. A book kept by a 
merchant, trader, mechanic, or other person, 
in which are entered from time to time the 
transactions of his trade or business. Such 
hooks, when regularly kept, may be admitied 
in evidence. Greenl. Ev. §§ 115-118. 


ACCOUNT CURRENT. An open or 
running or unsettled account between two 
parties. 

AM.DICT.LAW—2Z 


7 


| other count for a money demand. 


ACCOUNTANT GENERAL 


ACCOUNT DUTIES. Duties payable by 
the English customs and inland revenue act, 
1881, (44 Vict. ¢. 12, § 33,) on a donatio 
mortis causa, or on any gilt, the donor of 
which dies within three months after making 
it, or on joint property voluntarily so created, 
and taken by survivorship, or on property 
taken undera voluntary settlement in which 
the settlor had a life-interest. 


ACCOUNT RENDERED. An account 
made out by the creditor, and presented to 
the debtor for his examination and accept- 
ance. Whenaccepted, it becomes an account 
stated. 


ACCOUNT STATED. The settlement 
of an account between the parties, with a 
balance struck in favor of one of them; an 
account rendered by the creditor, and by the 
debtor assented to as correct, either express- 


| ly, or by implication of law from the failure 


to object. 

This wus also a common count in a decla- 
ration upon a contract under which the plain- 
tiff might prove an absolute acknowledgment 
by the defendant of a liquidated demand of a 
fixed amount, which implies a promise to pay 
on request. It might be joined with any 
The ac- 
knowledgment or admission must have been 
made to the plaintiff or his agent. Whar- 
ton. 


ACCOUNTABLE. Subject to pay; re- 
sponsible; liable. Where one indorsed a 
note “A. C. accountable,” it was held that, 
under this form of indorsement, he had 
waived demand and notice. 42 N. H. 74. 


ACCOUNTABLE RECEIPT. An in- 
struinent acknowledging the receipt of mon- 
ey or personal property, coupled with an ob- 
ligation to account for or pay or deliver the 
whole or some part of it to someperson. 27 
Minn. 315, 7 N. W. Rep. 262. 


ACCOUNTANT. One who keeps ac- 
counts; a person skilled in keeping books or 
accounts; an expert in accounts or book- 
keeping. 

A person who renders an account. When 
an executor, guardian, etc., renders an ac- 
count of the property in his hands and his 
administration of the trust, either to the ben- 
eficiary or to a court, heis styled, for the pur- 
pose of that proceeding, the “accountant.” 


ACCOUNTANT GHNERAL, or AC- 
COMPTANT GENERAL. An officer of 
the court of chancery, appointed by act of 
parliament to receive all money Icdged in 


ACCOUNTING 18 


eourt, and to place the same in the Bank of 
England for security. 12 Geo, I. ec. 32; 1 
Geo. IV. c.35; 15 & 16 Vict. c. 87, §§ 18-22, 
B9. See Daniell, Ch. Pr. (4th Ed.) 1607 et 
seq. The office, hiowever, has been abolished 
by 35 & 86 Vict. c. 44, and the duties trans- 
ferred to her majesty’s paymaster general. 


ACCOUNTING. The making up and 
rendition of an account, either voluntarily or 
by order of a court. 


ACCOUPLE. To unite; to marry. We 
unques accouple, never married. 
ACCREDIT. In international law. (1) 


T'o receive a3 an envoy in his public charac- 

ter, and give him credit and rank according- 
ly. Burke. (2) To send with credentials as 
anenvoy. Webst. Dict. 


ACCREDULITARE. L. Lat, In oli 
records, To purge an offense by oath. 
Blount; Whishaw. 


ACCRESCERE. In theciviland old En- 
glish law. To grow to; to pass to, and be- 
come united with, as soil to land per ullucvio- 
nem. Dig. 41, 1, 380, pr. 


ACCRETION. The act of growing toa 
thing; usually applied to the gradual and 
imperceptible accumulation of land by nat- 
ural causes, as out of the sea orariver. Ac- 
eretion of land isoftwokinds: By alluvion, 
t. e., by the washing up of sand or soil, 80 as 
to form firm ground; or by dereliction, as 
when the sea shrinks below the usual water- 
mark. 

The increase of real estate by the addition 
of portions of soil, by gradual deposition 
through the operation of natural causes, to 
that already in possession of the owner. 2 
Washb. Real Prop. 451. 


ACCROACH. To encroach; to exercise 
power without due authority. 

To attempt toexercise royal power. 4 Bl. 
Comm, 76. A knight who forcibly assaulted 
nnd detained one of the king’s subjects till he 
paid him a sum of money was held to have 
committed treason, on the ground of aceroach- 
ment. 1 Hale, P. C. 80. 


ACCROCHER. Fr. InFrenchlaw. ‘To 
delay; retard; put off. Accrocherun proces, 
to stay the proceedings in a suit. 


ACCRUE. To grow to; to be added to; 
to attach itself to; as a subordinate or acces- 
sory claim or demand arises out of, and is 
joined to, its principal; thus, costa accrue to 


ACCUSARE 


debt. 

The term is also used of independent or 
original demands, and then means to arias, 
to happen, to come into force or existence; 
as in the phrase, “The rightof action did not 
accrue within six years.” 


ACCRUER, CLAUSE OF. An express 
clause, frequently occurring in the case of 
gifts by deed or will to persons as tenants in 
common, providing that upon the death of 
one or more of the beneficiaries his or their 
shares shall go to the survivor or survivors. 
Brown, Theshare of the decedent is then 
said to acerue to the others. 


ACCRUING. Inchoate; in process of 
maturing. That which will or may, at a 
future time, ripen into a vested right, an 
available demand, or an existing cause of 
action. 18 Ohio St. 382. 


ACCRUING COSTS. Costs and ex- 
penses incurred after judgment, 


ACCUMULATED SURPLUS. Instat. 
utes relative to the taxation of corporations, 
this term refers to the fund which the com- 
pany has in excess of its capital and liabili- 
ties. 34N. J. Law, 493; 35 N. J. Law, 577. 


a judgment, and interest to the principal 


ACCUMULATIONS. When an executor 
or other trustee masses the rents, dividends, 
and other income which he receives, treats it 
as a capital, invests it, makes a new eapital 
of the income derived therefrom, invests that, 
and so on, née is said to accumulate the fund, 
and the capital and accrued income thus pro- 
cured constitute accumulations. 


ACCUMULATIVE. 
mulates, or is heaped up; additional. 


That which aceu- 
Said 
of several things heaped toyether, or of one 


thing added to another. 
| 


ACCUMULATIVE JUDGMENT. 
Where a person bas already been convicted 
and sentenced, and a second or additional 
judgment is passed against him, the execu- 
tion of which is postponed until the comple- 
tion of the first sentence, such second judg- 
ment is said to be accumulative. 


ACCUMULATIVE LEGACY. A seo- 
ond, double, or additional legacy; a legacy 
given in addition to another given by the 
same instrument, or by another instrument. 


Aeccusare nemo se debet, nisi coram 
Deo. No one is bound to accuse himself, ex- 
cept before God. See Ilardres, 139. 


ACCUSATION. A formal charge against 
a person, to the effect that he is guilty ofa 
punishable offense, laid before a court or 


Magistrate having jurisdiction to inquire 
into the alleged crime. 


Accusator post rationabile tempus 
non 6st audiendus, nisi sae bene de omis- 
gione excusaverit. Moore, 817. An ac- 
cuser ought not to be heard after the expira- 
tion of a reasonable time, unless he can 
account satisfactorily for the delay. 


ACCUSE. To bring a formal charge of 
crime against a person, before a competent 
court or officer. 30 Mich. 468. See 5 Rich. 
492. 


ACCUSED. The person against whom 
an accusation is made. 

“Accused” is the generic name for the de- 
fendant in a criminal case, and is more ap- 
propriate than either “prisoner” or “defend- 
ant.” 1 Car. & K. 181. 


ACCUSER. The person by whom an ac- 
cusation is made. 


ACEPHALI. The levelers in the reign 
of Hen. I., who acknowledged no head or 
superior. Leges H.1; Cowell. Also certain 
ancient heretics, who appeared about the be- 
ginning of the sixth century, and asserted 
that there was but one substance in Christ, 
and one nature. Wharton. 


ACEQUIA. In Mexican law. A ditch, 
channel, or canal, through which water, di- 
verted from its natural course, is conducted, 
for use in irrigation or other purposes. 


ACHAT. Fr. 
Cowell. 


ACHERSET. In old English law. A 
measure of corn, conjectured to have been 
the same with our quarter, or eight bushels, 
Cowell. 


ACKNOWLEDGE. To own, avow, or 
admit; to confess; to recognize one’s acts, and 
assume the responsibility therefor. 


A purchase or bargain. 


ACKNOWLEDGMENT. In convey- 
ancing. The act by which a party who has 
executed an-instrument of conveyance as 
grantor goes before a competent officer or 
court, and declares or acknowledges the same 
as his genuine and voluntary act and deed. 
The certiticate of the officer on such instru- 
ment that it has been so acknowledged. 

The term is also used of the act of a person 
who avows or admits the truth of certain 


ACCUSATION 19 


ACQUISITION 


facts which, if established, will entail a civil 
liability upon him. Thus, the debtor’s ae- 
knowledgment of the creditor’s demand or 
right of action will toll the statute of limita- 
tions. Admission is also used in this seuse. 
To denote an avowal of criminal acts, or the 
concession of (he truth of a criminal charge, 
the word “confession” seems more appro- 
priate. 


ACKNOWLEDGMENT MONEY. A 
sum paid in some parts of England by copy- 
hold tenants on the death of their lords, as a 
recognition of their new lords, in like man- 
ner as money is usually paid on the attorn- 
ment of tenants. Cowell. 


ACOLYTE. An inferior ministrant or 
servant in the ceremonies of the church, 
whose duties are to follow and wait upon the 
priests and deacons, etc. 


ACQUEST. An estate acquired newly, 
or by purchase. 1 Reeve, Eng. Law, 56. 


ACQUETS. Inthecivil law. Property 
which has been acquired by purcliase, gift, 
or otherwise than by succession. Immovable 
property which has been acquired otherwise 
than by succession. Merl. Repert. 

Profits or gains of property, as between 
husband and wife, Civil Code La. § 2369. 


ACQUIESCE. To give an implied con- 
sent to a transaction, to the accrual ofa right, 
or to any act, by one’s mere silence, or with- 
out express assent or acknowledgment. 


ACQUIESCENCHE. Acquiescencs is 
where a person who knows that he is entitled 
to impeach a transaction or enforce a right 
neglects to do so for such a length of time 
that, under the circumstances of the case, 
the other party may fairly infer that he has 
waived or abandoned his right. Sweet. 


ACQUIETANDIS PLEGIIS. A writ 
of justices, formerly lying for the surety 
against a creditor who refuses to acquit him 
after the debt has been satisfied. Reg. Writa, 
158; Cowell; Blount. 


ACQUIRE. In the law of contracts and 
of descents; to become the owner of property; 
to make property one’s own. 


ACQUIRED. Coming to an intestate in 
any other way than by gift, devise, or descent 
from a parent or the ancestor of a purent. 
2 Lea, 54. 


ACQUISITION. The act of becoming 
the owner of certain property; the act by 


ACQUISITION 


which one acquires or procures the property 
in anything. Used also of the thing ac- 
quired. 

Original acquisition is where the title to 
the thing accrues through occupancy or ac- 
cession, (g. v.,) or by the creative labor of 
the individual, as in the case of patents,and 
copyrights, i 

Derivative acquisition is where property in 
a thing passes from one person to ancther. 
It may transpire by the act of the law, as in 
eases of forfeiture, insolvency, intestacy, 
judgment, marriage, or succession, or by the 
act of the parties, as in cases of gift, sale, or 
exchange. . 


ACQUIT. ‘To release, absolve, or dis- 
charge one from an obligation or @ liability; 
or to legally certify the innocence of one 
charged with crime. 


ACQUIT A CAUTION. In French law. 
Certain goods pay higher export duties when 
exported to a foreign country than when they 
are destined for another French port. In or- 
der to prevent fraud, the administration com- 
pels the shipper of goods sent from ons 
French port to another to give security that 
such goods shall not be sent to a foreign 
country. The certificate which proves the 
receipt of ths security is called “acqutt & cau- 
tion.” Argles, Fr. Mere. Law, 543. 


ACQUITTAL. Incoltracts. A release, 
absolution, or discharge from an obligation, 
liability, or engagement. 

In eriminal practice. The legal and 
formal certification of the innocence of a per- 
son who has been charged with crime; a de- 
liverance or getting free a person from a 
charge of guilt, 

The abselution of a party accused ona trial 
before atraverse jury. 1 Nott & McC. 36; 3 
McCord, 461. 

Acguittals in fact are those which take 
place when the jury, upon trial, finds s verdict 
of not guilty. 

Acquittals tn law are those which take 
place by mere operation of law; as where a 
man has been charged merely as an accessary, 
and the principal has been acquitted. 2 Co. 
Inst. 364. 

In feudal law. The obligation on the 
part of a mesne lord to protect his tenant from 
any claims, entries, or molestations by lords 
paramount arising out of the services due to 
them by the mesne lord. See Co. Litt. 100d. 


ACQUITTANCE, Ineontracts. A 
written discharge, whereby one is freed from 


20 


ACT 


an obligation to pay money or perform a duty. 
lt differs from a release in not requiring to ba 
under seal, 

This word, though perhaps not strictly 
speaking synonymous with “receipt,” in- 
eludesit. A receipt is one form vf an acquit- 
tance; a discharge is another. A receipt in 
full is an acquittance, anda receipt fora part 
of a demand or obligation is an acquittance 
pio tanto. 51 Vt. 104. 


ACQUITTED. Released; absolved; 
purged of an accusation; judicially dis- 
charged from accusation; released from debt, 
etc, Includes both civiland criminal prose- 
cutions. 26 Wend. 383, 399. 


ACRE. <A quantity of land containing 
160 square rads of land, in whatever shape. 
Serg. Land Laws Pa. 185; Cro, Bliz. 476, 665; 
6 Coke, 67; Poph. 55; Co. Litt. 58. 

Originally the word “acre” (acer, aker, or 
Sax, acer) was not used as 4 measure of land, 
or tosignify any determinate quantity of land, 
but to denote any open ground, (l@tum quan- 
tumvis agrum,) wide champaign, or field; 
which is still the meaning of the German 
acker, derived probably from the same source, 
and is preserved in the names of some places 
in England, as Castle Acre, South Acre, ete. 
Burrill. 


ACREFIGHT, or ACRE. <A camp or 
fleld fight; a sort of duel, or judicial combat, 
anciently fought by single combatants, En- 
glish and Scotch, between the frontiers of the 
two kingdoms with swordand lance. Called 
“campfight,” and the combatants “cham: 
pions,” from tha open eld that was the stage 
of trial. Cowell. 


ACROSS. Under a grant of a right of 
way across the plaintiff’s lot of land, the 
grantee has not a right to enter at one place, 
go partly across, and then come out at another 
place on the same side of the lot. 5 Pick. 
163. See 10 Me. 391. 


ACT, 2. In its most general senge, this 
noun signifies something done voluntarily by 
a person: the exercise of an individual’s pow- 
er; an effect produced in the external world 
by an exercise of the power of a person ob- 
jectively, prompted by intention, and proxi- 
mately caused by a motion of the will. Ina 
more téchnical sensa, if means something dona 
voluntarily bya person, and of such a nature 
that certain legal consequences attach to it. 
; Thus a grantor acknowledges the conveyance 

to be his “act and deed,” the terms being syn- 
onymeus. 


ACT 


In the civil law. An act is a writing 
which slates in a legal form that a thing has 
been said, done, or agreed. Merl. Repert. 
In practice. Anything done by a court 
and reduced to writing; a decree, judgment, 
resolve, tule, order, or other judicial proceed- 
ing. In Scotch law, the orders and decrees 
of a court, and in Freneh and German law, 
all the records and documents in an action, 
ere called “acts.” 

In legislation. A written law, formally 
ordained or passed by the legislative power 
of a state, called in England an “act of par- 
liament,” and in the United States an “act 
of congress,” or of the “legislature;” a stat- 
ute. 

Acts are either public or private. Public 
acts (also called general acts, or general stat- 
utes, or statutes at large) are those which re- 
late tothe community generally, or establish 
aA wniversal rule for the governance of the 
whole body politic. 

Private acts (formerly called special, Co. 

| Litt. 1262) are those which relate either to 

particular persons (personal acts) or to par- 

ticular places, (local acts,) or which operate 

| only upon specified individuals or their pri- 
vate concerns. 

In Seoteh practice. An ebbreviation of 

actor, ‘proctor or advocate, especially for a 

\ plaintifi or pursuer,) usedin records. “Act. 

I A. Alt. B.” an abbreviation of Actor, A. 

Alter, B.; that is, for the pursuer or plain- 

i tiff, A., for the defender, B. 1 Broun, 386, 

note. 


ACT, . InScotch practice. Todo or per- 
form judicially; to enter of record. Surety 
“acted in the Books of Adjournal.” 1 
Broun, 4. 


ACT BOOK. 
minute book of a court. 


In Scotch practice. The 


1 Swin. 81. 


ACT IN PAIS, An act done or per- 
formed out of court, and not a matter of ree- 
ord. 


A deed or an assurance transacted between | 
two or more private persons in the country, | 


that is, according to the old common law, 
upon the very spot to be transferred, is mat- 
ter in pais. 2 Bl. Comm. 294. 


ACT OF ATTAINDER. A legislative 
act, attainting a person. See ATTAINDER. 


ACT OF BANKRUPTCY. Any act 
which renders a person liable to be proceeded 


against a3 a bankrupt, or for which he may | 


be adjudged bankrupt. These acts are usual- 


21 


| dence could not foresee or prevent. 


ACT OF HONOR 


ly defined and classified in statutes on the 
subject. 


ACT OF CURATORY. In Scotch law. 
The act extracted by the clerk, upon any 
one’s acceptance of being curator. Forb. 
Inst. pt. 1, b.1, c. 2, tit. 2. 2 Kames, Eq. 
291. Corresponding with the order for the 
appointment of a guardian, in English and 
American practice. 


ACT OF GOD. Inevitable accident; vis 
major. Any misadventure or casualty is 
said to be caused by the “act of God” when 
it happens by the direct, immediate, and ex- 
clusive operation of the forces of nature, un- 
controlled or uniniiuenced by the power of 
man and without human intervention, and 
is of such a character that it could not have 
been prevented or cscaped from by any 
amount of foresight or prudenes, or by any 
reasonable degree of care or diligence, or by 
the aid of any appliances which the situation 
of the party might reasonably require him to 
use. 

Inevitable accident, or casualty; any accl- 
dent produced by any physical cause which is 
irresistible, such as lightning, tempests, per- 
ils of the seas, an inundation, or earthquake; 
and also the sudden illness or death of per- 
sons. Story, Bailm. § 25; 2 BL Comm. 122; 
Broom, Max. 108. 

Under the term “act of God” are compre- 
hended all misfortunes and accidents arising 
from inevitable necessity, which human pru- 
1 Conn. 
491. 


ACT OF GRACE. In Scotch law. A 


| term applied to the act of 1696, c. 32, by which 


it was provided that where a person impris- 
oned fur a civil debt is so poor that he can- 
not aliment [maintain] himself, and will 
make oath to that effect, it shalk be in the 


D 


E 


F 


power of the magistrates to cause the creditor J 


by whom he is incarcerated to provide an ali- 
ment for him, or consent to his liberation; 


| which, if the creditor delay to do for 10 days, 


the magistrate is authorized to set the debtor 
at liberty, Dell. 

The term is often used to designate a per» 
eral act of parliament, originating with the 
crown, such as has often been passed at the 
commencement of a new reign, or at tlie close 
of a period of civil troubles, declaring par- 
don or amnesty to numerous offenders. Ab- 
bott. 


ACT OF HONOR. Whena bill has been 
protested, and a third person wishes to take 
it up, or accept it, for honor of one or mora 


Wl 


ACT OF INDEMNITY 


of the parties, the notary draws up aun instru- 
ment, evidencing the transaction, called by 
this name. 


ACT OF INDEMNITY. A statute by 
which those who have committed illegal acts 
which subject them to penalties are protected 
from the consequences of such acts. 7 


ACT OF INSOLVENCY. Within the 
meaning of the national currency act, an act 
of inso)vency is an act which shows the bank 
to be insolvent; such as non-payment of its 
circulating notes, bills of exchange, or certifi- 
eates of deposit; failure to make good the im- 
pairment of capital, or to keep good its sur- 
plus or reserve; in fact, any act which shows 
that the bank is unable to meet its liabilities 
as they mature, or to perform those duties 
which the law imposes for the purpose of sus- 
taining its credit. 5 Biss. 504. 


ACT OF LAW. The operation of fixed 
fegal rules upon given facts or occurrences, 
producing consequences independent of the 
design or will of the parties concerned; as 
distinguished from “act of parties.” 


ACT OF PARLIAMENT. A statute, 
law, or edict, made by the British sovereign, 
with the advice and consent of the lords spir- 
itual and temporal, and the commons, in per- 
liament assembled. Acts of parliament form 
the leges scripta, t. e., the written laws of 
the kingdom. 


ACT OF SETTLEMENT. The statute 
{12 & 13 Wm. III. ce. 2) limiting the crown to 
the Princess Sophia of Hanover, and to the 
heirs of her body being Protestants. 


ACT OF STATE. An act done by the 
sovereign power of a country, or by its dele- 
gate, within the limits of the power vested in 
him. Anact of state cannot be questioned or 
made the subject of legal proceedings ina 
court of law. 


ACT OF SUPREMACY. The statute 
(1 Eliz. e. 1) by which the supremacy of the 
sritish crown in ecclesiastical matters with- 
{n the realm was declared and established. 


ACT OF UNIFORMITY. In English 
law. The statute of 13 & 14 Car. Llc. 4, 
enacting that the book of common prayer, as 
then recently revised, should be used in every 
parish church and other place of pubiiec wor- 
ship, and otherwise ordaining a aniformity 
in religious services, ete. 3 Steph. Comm. 
104. 


22 


ACTE AUTHENTIQUE 


ACT OF UNION. In English law. 
The statute of 5 Anne, c. 8, by which the 
articles of union befwean the two kingdoms 
of England and Scotland were ratified and 
confirmed. 1 Bl. Comm, 97. 


ACT OW PETITION. A form of sum- 
mary proceeding formerly in use in the high 
court of admiralty, in England, in which the 
parties stated their respective cuses brietly, 
and supported their statements by affidavit. 
2 Dod. Adm. 174, 184; 1 Hagg. Adm. 1, note. 


ACTA DIURNA. Lat. In the Roman 
law. Daily acts; the public registers or 
journals of the daily proceedings of the sen- 
ate, assemblies of the people, courts of jus- 
tice, etc. Supposed to have resembled 2 
modern newspaper. Brande. 


Acta exteriora indicant interiora se- 
crota. 8 Coke, 1468. External acts indicate 
undisclosed thoughts, 


Acta in uno judicio non probant in 
alio nisi inter easdem personas. Things 
done in one action cannot be take as evi- 
dence in another, unless it be between the 
same parties. Tray. Lal. Max. 11. 


ACTA PUBLICA. Lat. Things of gen- 
eral knowledge and concern; matters trans- 
acted before certain public officers. Calvin. 


ACTE. In French law, denotes a docu- 
ment, or formal, solemn writing. embodying 
a legal attestation that something has been 
done, corresponding to one sense or use of the 
English word “act.” Thus, actes de naissance 
are the certificates of birth, and must contain 
the day, hour, and place of birth, together 
with the sex and intended christian name of 
the child, and the names of the parents and 
of the witnesses. Actes de mariage are the 
marriage certificates, and contain names, pro- 
fessions, ages, and places of birtn and domi- 
cile of the two persons marrying, and of their 
parents; also the consent of these latter, and 
the mutual agreements of the intended hus- 
band and wife to take each other for better 
and wors¢, together with the usual attesta- 
tions. Actes de décéts are the certificates of 
death, which are required to be drawn up be- 
fore any one may be buried. Les artes del - 
état ctvil are public documents. Brown. 


ACTE AUTHENTIQUE. In French 
law. A deed, executed with certain pre- 
scribed formalities, in the presence of a no- 
tary, mayor, greffier, hutssier, or other func 
tionary qualified to act in the place in which 
{tisdrawn up. Argles, Fr. Mere. Law, 50. 


ACTE DE FRANCISATION 


ACTH DE FRANCISATION. In 
freneh law. The certificate of registration 
ofa ship, by virtue of which its French na- 
tionality is established. 


ACTE D’ HERITIER. In French law. 
Act of inheritance, Any action or fact on 
the part of an heir which manifests his inten- 
tion to accept the succession; the acceptance 
may be express or tacit. Duverger. 


ACTE EXTRAJUDICIAIRE. In 
French law. A document served by a huis- 
ster, ab Lhe demand of one party upon another 
party, without legal proceedings. 


ACTING. A term employed to designate 
a locum terens who is performing the duties 
of an office to which he does not himself 
claim title; e. g., “Acting Supervising Archi- 
tect.” 16 Ct. of Cl. 514. 


ACTIO, Lat, Inthecivillaw. An action 
or suit; nright or canse of action. Itshould 
be noted that this term means both the pro- 
ceeding to enforcea right in a court and the 
right itself which is sought to be enforced. 


ACTIO AD EXHIBENDUM. In the 
civillaw. Anaction for the purpose of com- 
pelling a defendant to exhibit a thing or 
title in his power. It was preparatory to 
another action, which was always a real ac- 
tion in the sense of the Roman law; that is, 


23 


for the recovery of a thing, whether it was | 


movable or immovable. 
i. 84. 


ACTIO MmSTIMATORIA. ACTIO 
QUANTI MINORIS. In the civil law. 
Two names of an action which lay in behalf 
of a buyer to reduce the contract price, not to 
vancel the sale; the judex had power, how- 
ever, tocancel the sale. Hunter, Rom. Law, 
aoe. 


Merl. Quest, tome 


ACTIO ARBITRARIA. In the civil 
law. Action depending on the discretion of 
the judge. In this, unless the defendant 
would make amends to the plaintiff as die- 
tuted by the judge in his discretion, he was 
liable to be condemned. Hunter, Rom. Law, 
825. 


ACTIO BONA FIDEI. (Lat. An ac- 
tion of good faith.) Inthecivillaw. A class 
of actions in which the judge might at the 
trial, ex officio, take Into account any equi- 
fable circumstances that were presented to 
him aifeeting either of the parties to the ac- 
fion, 1 Spence, Eq. Jur. 218. 


| In the civil Jaw. 
plaintiff recovers the amount of a sum of 


| Jender, 


ACTIO 


ACTIO CALUMNIZ. In the civil law. 
An action to restrain the defendant from pros- 
ecufing a groundless proceeding or trumped- 
up charge against the plaintiff. Tunter, 
Rom. Law, 859. 


ACTIO CIVILIS. In the common law. 
A civil action, as distinguished from a crimi- 
nal action. Bracton divides personal actions 
into eriminalia et civilia, according as they 
grow out of crimes or contracts, (secundum 
quod descendunt en mateficiis vel contracti- 
bus.) Bract. fol. 101d. 


ACTIO COMMODATI. In the civil 
law. Included several actions appropriate to 
enforces the obligations of a borrower ora 
Hunter, Rom. Law, 305. 


ACTIO COMMODATI CONTRARIA. 
In the civillaw. An action by the borrower 
against the lender, to compel the execution 
of the contract, Poth. Prét ad Usage, n. 75. 


ACTIO COMMODATI DIRECTA. In, 
the civillaw. An action by alender against 
a borrower, the principal object of which is 
to obtain a restitution of the thing lent. 
Poth. Pr2t 4 Usage, on. 65, 68, 


ACTIO COMMUNI DIVIDUNDO. In 
the civil law. An action to procure a judi- 
cial division of joint property. Hunter, 
Rom. Law, 194. It was analogous in its ob- 
ject to proceedings for partition in modern 
law. 


ACTIO CONDICTIO INDEBITATI, 
An action by which the 


money or other thing he paid by mistake. 
Poth. Promutuum, no. 140; Merl. Repert. 


ACTIO CONFESSORIA. In the civil 
law. An affirmative petitory action for the 
recognition and enforcement of a servitude, 
So called because based on tho plaintiff’s af. 
firmative allegation of a right in defendant's 
land. Distinguished from an actio nega- 
torta, which was brought to repel a claim of 
the defendant toa serviiude in the plaintiff's 
land. Mackeld. Rom. Juw, § 324. 


ACTIO DAMNI INJURIA. In the 
civillaw. The name of a general class of 
actions for damages, including many species 
of suits for losses caused by wrongful or 
negligent acts. The term is about equiva- 
lent to our “action for damages,” 


ACTIO DE DOLO MALO. Inthe civil 
law. An action of fraud; an action which 
lay for a defrauded person against the de- 


: 


2 


ACTIO 


frauder and his heirs, who had been enriched 
by the fraud, to obtain the restitution of the 
thing of which he had been fraudulently de- 
prived, with all its accessions (ewm omit 
causa ;) or, where this was not practicable, 
for compensation in damages. Mackeld. 
Rom. Law, § 227. : 


ACTIO DE PECULIO. In the civil 
law. An action concerning or against the 
peculium, or separate property of a party. 


ACTIO DE PECUNIA CONSTITU- 
TA. Inthecivillaw. An action for mon- 
ey engaged to be paid; an action which lay 


money for himself, or for another, without 
any formal stipulation, (nella stipulatione 
interposita.) Inst. 4, 6, 9; Dig. 13, 5; Cod. 
4, 18. 


ACTIO DEPOSITI CONTRARIA. In 
the civil law. An action which the deposi- 
tary has against the depositor, to compel him 
to fulfil hisengagement towardshim. Poth. 
Du Dépit, n. 69. 


ACTIO DHEPOSITI DIRECTA. In 
thecivillaw. An action which is brought by 
the depositor against the depositary, in order 
to get back the thing deposited. Poth. Du 
Dépit, n. 60. 


ACTIO DIRECTA. In the civil law. 
A direct action; an action founded on strict 
law, and conducted according to fixed forms; 
an action founded on certain legal obliga- 
tions which from their origin were accurate- 
ly detined and recognized as actionable. 


ACTIO EMPTI. Inthecivillaw. An 
action employed in behalf of a buyer to com- 
pel a seller to perform his obligations or pay 
compensation; also to enforce any special 
agreements by him, embodied ina contract of 
sale. Hunter, Rom. Law, 332. 


ACTIO EX CONDUCTO. In thie civil 
law. Anaction which the bailor of a thing for 
hire may bring #gainst the builee, in order to 
compel him to redeliver the thing hired. 


ACTIO EX CONTRACTU. In theciyil 
and common law. <An action of contract; 
an action arising out of, or founded on, con- 
tract. Inst. 4, 6, 1; Bract. fol. 102; 3 Bi. 
Comm. 117. 


ACTIO EX DELICTO. In the civil 
and common law. An action of tort; an ac- 
tion arising out of fault, misconduct, or mal- 
feasance. Inst. 4, 6, 15; 3 Bl Comm. 117. 
Ha mateficio is the more common expression 


24 


law. An action against the exeretior or am- 
against any person who had engaged to pay | 


ACTIO 


of thecivillaw; whichis adopted by Bracton. 
Inst. 4, 6, 1; Bract. fols. 102, 103. 


ACTIO EX LOCATO. In thecivillaw. 
An action upon letting; an action which the 
person who let a thing for hire to another 
might have against the hirer. Dig, 19, 2; 
Cod. 4, 65. 


ACTIO EX STIPULATU. Inthecivil 
law. An action brought to enforce a stipu- 
lation. ' 


ACTIO EXERCITORIA. In the civil 


ployer of a vessel. 


ACTIO FAMILIA: ERCISCUNDA. 
In the civil law. An action for the partition 
of an inheritance. Inst. 4, 6, 20; Id. 4, 17, 
4. Called, by Bracton and Fleta,a mixed 
action, and classed among actions arising ew 
quast contructu, Bract. fol. 100b; Id. fols. 
443), 444; Fleta, lib. 2, c 60, § 1. 


ACTIO FURTI. In thecivillaw. An 
action of theft; an action founded upon 
theft. Inst. 4, 1, 13-17; Bract. fol. 444. 
This could only be brought for the penalty 
altached to the offense, (tantum ad pone 
persecntionem pertinet,) and not to recover 
the thing stolen iiself, for which other ac- 
tions were provided. Inst. 4, 1, 19. 


ACTIO HONORARIA. In thecivil law. 
An honorary, or pretorian action. Dig. 44, 
7, 25, 35. 


ACTIO IN FACTUM. In the civil 
law. An action adapted to the particular 
case, having an analogy to some actio in jus, 
the latter being founded on some subsisting 
acknowledged law. Spence, Eq. Jur. 212. 
The origin of these actions is similar te 
that of actions on the case at common law. 


ACTIO IN PERSONAM. In the civil 


_law. An action against the person, founded 


on a personal liability; an action seeking ro- 
dress for the violation of ajus in personam 
orright available against a particular individ- 
ual, 

In admiralty law. An action directed 
against the particular person who is to be 
charged with the liability. It is distinguished 
from an aclioin rem, which ia a suit directed 
against a specific thing (as a vessel) irre- 
spective of the ownership of. it, to enforce a 
claim or lien upon it, or to obtain, out of the 
thing or out of the proceeds of its sale, satis- 
faction for an injury alleged by the claimant. 


ACTIO: * 


CTIO IN REM. In the civil and com- 
law. An action for a thing; an ac- 
ion for the recovery of a thing possessed by 
another. Inst. 4, 6, 1. An action for the 
enforcement of a right (or for redress for its 
vasion) which was originally available 
“against all the world, and not in any special 

sense against the individual sued, until he 
 yivlated it, See IN Res. 


ACTIO JUDICATI. In the civil law. 
An action instituted, after four months had 
elapsed after the rendition of judgment, in 
which the judge issued his warrant to seize, 
first, the movables, which were sold within 
eight days aflerwards; and then the immov- 
ables, which were delivered in pledge to the 
creditors, or put under the care of acurator, 
and if, at the end of two months, the debt 


was not paid, the land was sold. Dig. 42, 
1; Code, 8, 34. 
ACTIO LHGIS AQUILIZ. In the 


civil law. An action under the Aquilian 
law; an action to recover datnages for mali- 
elousiy or injuriously killing or wounding 
the slave or beast of another, or injuring in 
any way a thing belonging to another. Oth- 
erwise called damnit injurie actio. 


ACTIO MANDATI. In the civil law. 
| Included actions to enforce contracts of man- 
t dute, or obligations arising out of them. 
} Hunter, Rom. Law, 316. 


| ACTIO MIXTA. In the civillaw. A 
mixed action; an action brought for the re- 
covery of a thing, or compensation for dam- 
ages, and also for the payment of a penalty; 
partaking of the nature beth of an actio tin 
yem and in personam. Inst. 4, 6, 16, 18, 19, 
20; Mackeld. Rom. Law, § 209. 


ACTIO NEGATORIA. In the civil 
law. An action brought to repel a claim of 
the defendantto a servitude in the plaintiff’s 
land. Mackeld. Rom. Law, § 824. 


ACTIO NEGOTIORUM GESTORUM. 
In the civil law. Included actions between 
principal and agent and other parties to an 
engagement, whereby one person undertook 
the transaction of business for another. 


ACTIO WOW. In pleading. The Latin 
name of that part of a special plea which fol- 
lows next after the statement of appearance 
and defense, and declares that the plaintiff 
“ought not to have or maintain his aforesaid 
action,” etc. 


ACTIO NON ACCREVIT INFRA 
SEX ANWNOS. The name of the plea of 


| pil 


25 


ACTIO 


the statute of limitations, when the defend- 
ant alleges that the plaintiff's action has not 
acerued within six years. 


Actio non datur non damnificato. An 
action is not given to one who is not injured. 
Jenk. Cent. 69. 


Actio non facit reum, nisi mens sit 
rea. An action does not make one guilty, 
unless the intention be bad. Lofft. 37. 


ACTIO NON ULTERIUS. In En- 
glish pleading. A name given to the distinct- 
ive clause in the plea to the further main- 
tenance of the action, introduced in place of 
the plea puis darrein continuance, the aver- 
ment being that the plaintiff ought not further 
(wlterius) to have or maintain his action. 
Steph. Pl. 64, 65, 401. 


ACTIO NOXALIS. In the civil law. 
A noxal action; an action which lay against 
a master for a crime coiniitted or injury done 
by his slave; and in which the master had the 
alternative either to pay for the damage done 
or to deliver up the slave to the complaining 
party. Inst. 4, 8, pr.; Heinece. Elem. lib. 4, 
tit. 8. So called from nowa, the offense or 
injury committed. Inst. 4, 8, 1. 


ACTIO PERSONALIS. In the civil 
and common law. <A personal action. The 
ordinary term for this kind of action in the 
civil law is actio in personam, (q. v.,) the 
word personalis being of only occasional oc- 
currence. Inst. 4, 6, 8, in tit.; Id. 4, 11, 
pr. 1. Bracton, however, uses it freely, and 
hence the personal aciion of the common 
law. Bract. fols. 1022, 159d. See PexrsonaL 
ACTION. 


Actio personalis moritur cum persona. 
A personal right of action dies with the per- 
son. Noy, Max. 14. 


ACTIO PIGNORATITIA. In thecivil 
law. An action of pledge; an action found- 
ed on the contract of pledge, (pignus.) Dig. 
18, 7; Cod. 4, 24. 


Actio peenalis in heredem non datur, 
nisi forte ex damno locupletior heres 
factus sit. <A penal action is not given 
against an heir, unless, indeed, such heir is 
benefited by the wrong. 


ACTIO PRAJUDICIALIS. In thecivil 
law. <A preliminary or preparatory action. 
An action instituted for the determination of 
some preliminary matter on which other liti- 
gated matters depend, or for the determina- 
tion of some point or question arising in an- 


ACTIO 


other or principal action; and so called from 
its being determined before, (pris, oF pra ju- 
dicari.) 


ACTIO PR#ESCRIPTIS VERBIS. 
the civil law. A form of action which de- 
rived its force from continued usage or the 
responsa prudentium, and was founded on 
the unwritten law. 1 Spence, Eq. Jur. 212. 


ACTIO PR&#TORIA. In the civil law. 
A pretorian action; one introduced by the 
pretor, as distinguished from the more an- 
cient actio civilis, (g. v.) Inst, 4, 6, 3; 
Mackeld. Rom. Law, § 207. 


ACTIO PRO SOCIO. In the civil law. 
Anaction of partnership. An action brought 
by one partner against bis associates to com- 
pel them to carry out the terms of the part- 
nership agreement. 


ACTIO PUBLICIANA. In the civil 
law. An action which lay for one who had 
lost a thing of which he had bene fide ob- 
tained possession, befure he had gained a 
property in it, in order to have it restored, 
under color that he had obtained a property 
in it by prescription. Inst. 4, 6,4; Heinecc. 
Elem. lib. 4, tit. 6, § 1131; Halifax, Anal. b. 
3, ¢c. 1, n.9. It was an honorary action, and 
derived its name from ihe prictor Publicius, 
by whose edict it was first given. Inst. 4, 
6, 4. 


Aetio quelibet it sua via. Every action 
proceeds in its own way. Jenk. Cent. 77. 


ACTIO QUOD JUSSU. In thie civil 
law. An action given against a master, 
founded on some business done by his slave, 
acting under his order, (jussu.) Inst 4, 7, 
1; Dig. 15, 4; Cod. 4, 26. 


ACTIO QUOD METUS CAUSA. In 
‘the civil law. An action granted toone who 
had been compelled by unlawiul force, or fear 
(metis causa) that was not groundless, 
(metus probabilis or justus,) to deliver, sell, 
or promise a thing to another. SBract. fol. 
1030; Mackeld. Rom. Law, § 226, 


ACTIO REALIS. A real action. The 
proper term in the civil law was Ret Vindi- 
eatio. Inst. 4, 6, 3. 


ACTIO REDHIBITORIA. Inthecivil 
law. Am action to cancel a sale in conse- 
quence of defects in the thing sold. It was 
prosecuted to compel complete restitution fo 
the seller of the thing sold, with its produce 
-and accessories, and to give the buyer back 
the price. with interest, as an equivalent for 


26 


In| 


ACTIO 


the restitution of the produce. Hunter, hom. 
Law, 382. 


ACTIO RERUM AMOTARUM. In 
the civillaw. An action for things removed; 
an action whieh, in cases of divorce, lay for 
a husband against a wife, to recover thinga 
carried away by the latter, in contemplation 
of such divorce, (divortii consilio.) Dig. 25, 
2; Id. 25, 2, 25, 30. It alsolay for the wife 
against the husband in such eases, Id. 25, 
2, 7, 11; Cod. 5, 21. 


ACTIO RESCISSORIA. In the civil 
law. An action for restoring the plaintift to 
a right or title whieh he has lost by preserip- 
tion, in a case where the equities are such 
that he should be relieved from the operation 
of the prescription. Mackeld. Rom. Law. 
§ 226. 


ACTIO SERVIANA. In the civil law. 
An action which lay for the lessor of a farm, 
or rural estate, to recover the goods of the les- 
see or farmer, which were pledged or bound 
for the rent. Inst. 4, 6, 7. 


ACTIO STRICTI JURIS. In the civil 
law. Anactionof strict right. The class of 
civil law personal actions, which were ad- 
judged only by the strict law, and in which 
the judge was limited to the precise language 
of the formula, and had no discretionary 
power to regard the bona fides of the trans- 
action, See Inst. 4, 6, 28; Gaius, iii, 187; 
Mackeld. Rom. Law, § 210. 


ACTIO TUTELA. In the elvil law. 
Action founded on the duties or obligations 
arising on the relation analogous to that of 
guardian and ward. 


ACTIO UTILIS. Im the civil law. A 
beneficial action or equitable action. An ac- 
tion founded on equity instead of strict law, 
and available for those who had equitable 
rights or the beneficial ownership of prop- 
erty. 

Actions are divided into direciw or utiles ac- 
tions. The former are founded on certain legal ob- 
ligations which from their origin were accurately 
defined and recognized as actionable. The latter 
were formed analogically in imitation of the for- 
mer. They were permitted in legal obligations 
for which the actiones dirccte were not original- 
ly intended, but which resembled the legal obligu 
tions which formed the basis of the direct action. 
Mackeld. Rom. Law, § 207. 


ACTIO VENDITI. In the civil law. 
An action employed in behalf of a sellur, to 
compel a buyer to pay the price, or perform 
any special obligations embodied in a con- 
tract of sale. Hunter, Rom. Law, 332. 


ACTIO 


ACTIO VI BONORUM RAPTORUM. 
Inthe civillaw. An action for goods taken 
‘by force; a species of mixed action, which 
lay for a party whose goods or movables 
{bona) had been taken from him by force, 
(vt) to recover the things so taken, together 
witha penalty of triple the value. Inst. 4, 
2; Id. 4, 6,19. Bracton deseribes it as lying 
de rebus mobilibus vi ablatis sive robbatis, 
{for movable things taken away by force, or 
robbed.) Bract. fol. 1030. 


ACTIO VULGARIS. In the civil law. 
A legal action; a common action, Some- 
times used for actio directa. Mackeld. Rom. 
Law, § 207. 


ACTION. Conduct; behavior; some- 
thing done; the condition of acting; an act 
or series of acta. 


In practice. The legal and formal de- 
mand of one’s right from another person or 
party made and insisted on in a court of jus- 
tice. 

An action is an ordinary proceeding in a 
court of justica by which one party prose- 
elutes another for the enforcement or protec- 
tion of a right, the redress or prevention of 
# wrong, or the punishment of a public of- 
fense. Code Civil Proc. Cal. § 22; Code N. 
Y. § 2; Code N. C. 1883, § 126. 

An action is merely the judicial means of 
enforcing aright. Code Ga, 1882, § 3151. 

Action is the form of a suit given by law 
for the recovery of that whicli is one’s due; 
the lawful dainand of one’s right. Co. Litt. 
2840, 285. 


Classification of actions. Cévil actions 
are guch as lie in behalf of persons to en- 
force their rights or obtain redress of wrongs 
iu their relition to individuals. 

Criminal actions are such as are instituted 
by the sovereign power, for the purpose 
of punishing or preventing offenses against 
the public. 

Penal actions are such as are brought, 
gilher by the state or by an individual under 
permission of a statute, to enforce a penalty 
imposed by law for the commission of a pro- 
hibited act. 

Common law actions are such as will lie, 
on the particular facts, af common law, with- 
out the aid of a statute. 

Statutory actions are such as can only be 
based upon the particular statutes creating 
them. 

Popular actions, in English usage, are 
those actions which are given upon the 


27 


= pe 


ACTION 


breach of a penal statute, and which any man 
that will may sus on account of the king and 
himself, as the statute allows and the case 
requires. Because the action is not given to 
one especially, but generally to any that will 
prosecute, itis called “action popuiar;” and, 
from the words used in the process, (qui tam 
pro domino rege sequitur quam pro se ipso, 
who sues as well for the king as for himself, ) 
it iscalled a qué tam action. ‘Tomlins. 

Real, personal, mixed. Actions are di- 
vided inte real, personal, and mixed; real 
actions being those brought for the specific 
recovery of lands or other realty; personal 
actions, (hose for the recovery of adebt, per- 
sonal chattel, or damages; and mixed actions, 
those for the recovery of real property, to- 
gether with damages for a wrong connected 
with it. Litt. § 494; 3 Bl. Comm. 117, 

Locai actions are those founded upon a 
cause of action which necessarily refera to, 
and could only arise in, some particular 
place, ¢. g., trespass to land. 

Transitory actions are those founded upon 
a cause of action not necessarily referring to 
or arising in any particular locality. 

Actions are called, in common-law practice, 
ex contractu, when they are founded on a 
contract; ex delieto, when they arise out of a 
wrong. 

“Action” and “Suit.” The terms “ac- 
tion” and “suit” are now nearly, if not en- 
tirely synonymous. (3 Bl. Comm. 3, 116, et 
passim.) Or, if there be a distinction, it is 
that the term “action” is generally confined 
to proceedings in a court of law, while 
“suit” is equally applied to prosecutions at 
law orin equity. Formerly, however, there 
was a more substantial distinction between 
them. An action was considered as termi- 
nating with the giving of judgment, and the 
execution formed no part of it. (Litt. § 504; 
Co. Litt. 289a.) A suit, on the other hand, 
included the execution. (Id. 291a,) So, an 
action is termed by Lord Coke, “the right of 
a suit.” (2 Inst. 40.) Burrill. 


In French commercial law. Stock in 
a company, or shares in a corporation. 


ACTION FOR POINDING OF THE 
GROUND. Aterm of the Scotchlaw. See 
POINDING. 


ACTION OF A WRIT. A phrase used 
when a defendant pleads some matter by 
which he shows that the plaintiff had no 
cause to have the writ sued upon, altheugh 
it may be that he is entitled to another writ 
or action for the game matter. Coweil. 


ACTION 


ACTION OF ABSTRACTED MULT- 
URES. InScotchlaw. Anaction for mult- 
ares or tolls against those who are thirled to 
a mill, #¢., bound to grind their corn at a 
certain mill, and fail to do so. Hell. 


. ACTION OF ADHERENCE. InScofch 
aw. An action competent to a hushand er 
wife, to compel either party to adherein case 
of desertion. It is analogous to the English 
suit for restitution of conjugal rights. 
Wharton. 


ACTION OF BOOK DEBT. A form 
of action for the recovery of claims, such as 
are usually evidenced by a book-account; this 
action is principally used in Vermont and 
Connecticut, 


ACTION ON THE CASE. A species 
of personal action of very extensive applica- 
tion, otherwise called “trespass on the case,” 
or simply “case,” from the circumstance of 
the plaintiffs whole case or cause of com- 
plaint being set forth at length in the origi- 
nal writ by which formerly it was always 
commenced. 3 Bl. Comm. 122. 


ACTION REDHIBITORY., In the civil 
law. An action instituted to avoid a sale on 
account of some vice or defect in the thing 
sold, which renders it either absolutely use- 
less or ifs use so inconvenient and imperfect 
that it must be supposed the buyer would not 
have purchased it had he known of the vices. 
Civil Code La. art. 2496. 


ACTIONABLE. That for which an ac- 
tion will lie; furnishing legal ground for an 
action; ¢. g., words are aclionable per se, in 
slander, when an action may be brought up- 
on them without alleging special damage. 


ACTIONARE. L. Lat. (rom actio,an 
action.) Inold records. To bring an action; 


to prosecute, or sue. Thorn’s Chron.; 
Whishaw. 
ACTIOWARY. A foreign commercial 


term for the proprietor of an action or share 
of w public company’s stock; a stockholder. 


ACTIONES LEGIS. Inthe Romanlaw. 
Legal or lawful actions; actions of orat law, 
(legitime actiones.) Dig. 1,2, 2, 6. 


ACTIONES NOMINATZ, Inthe En- 
glish chancery. Writs for which there were 
precedents. The statuteof Westminster, 2, 
c. 24, gave chancery authority to form new 
writs in consimtlt casu; hence the action on 
the case. 


28 


ACTOR 


ACTIONS ORDINARY. In Scotch law. 
All actions which are not rescissory. Ersk. 
Inst. 4, 1, 18. 


ACTIONS RESCISSORY. In Scotch 
law. These are either (1) actions of proper 
improbation for declaring a writing false or 
forged; (2) actions of reduction-improbation 
for the production of a writing in order to 
have it set aside or its effect uscertained un- 
der the certification that the writing if not 
produced shall be declared false or forged: 
and (3) actions of simple reduction, for de- 
claring a writing called for null until pro- 
duced. Evsk. Prin. 4, 1, 5. 


ACTIVE. That is in action; that de 
mands action; actually subsisting; the oppo- 
site of passive. An active debt is one which 
draws interest. An active trust is a confi- 
dence connected with aduty. An active use 
is a present legal estale. 


ACTON BURNEL, Statute of. In 
English Jaw. <A statute, otherwise called 
“Sitatutum de Mercatoribus,” made at a par- 
liament held at the castle of Acton Burnel in 
Shropshire, in the 11th year of the reign of 
Edward I. 2 Reeves, Eng. Law, 158-162, 


ACTOR. In Roman law. One whoacted 
for another; one who attended to another's 
business; a manager or agent. A slave who 
attended to, transacted, or superintended his 
master’s business or affairs, received and 
paid out moneys, and kept accounts. Bur- 
rill. 

A plaintiff or complainant. In a civil or 
private action the plaintiff was often called 
by the Romans “petitor;” ina public action 
(causa publica) he was called “accusator.” 
The defendant was called “reus,” both in 
private and public causes; this term, how- 
ever, according to Cicero, (Ve Grat. ii. 43,) 
might signify either party, as indeed we 
might conclude from the word itself. In a 
private action, the defendant was often called 
“adversarius,” but either party might be 
calied so. 

Also, the term is used of a party who, for 
the time being, sustains the burden of proof, 
or has the initiative in the suit. 

In old Huropean law. A proctor, ad- 
vocate, or pleader; one who acted for another 
in legal matters; one who represented a party 
and managed his cause. An attorney, bail. 
iff, or steward; one who managed or acted 
for another. The Scotch “deer” is the literal 
translation. 


ACTOR 


qui contra regulam quid ad- 
it, non est audiendus. A plaintiff is 
obe heard who has advanced anything 
sinst authority, (or against the rule.) 


or sequitur forum rei. According 
rei ia intended as the genitive of ves, a 
os veus, a defendant, this phrase 
is: The plaintiff follows the forum of 
) property in suit, or the forum of the de- 


dant’s residence. ranch, Max. 4. 


Actore non probante reus absolvitur. 
the plaintift does not prove his case the 
dant is acquilted. Hob. 103. 


_ Actori ineumbit onus probandi. Thea 
burden of proof rests on the plaintiff, (or on 
“the party who advances a proposition afirma- 
tively.) Hob. 103. 


ACTORNAY. 
atiorney, Skene. 


ACTRIX. Lat. A female actor; a fe- 
male plaintiff. Calvin 

Acts indicate the intention. § Co. 1468; 
Broom, Max. 301 


ACTS OF COURT. Legal memoranda 
mide in the admiralty courts in England, in 
the nature of pleas. 


ACTS OF SEDERUNT. In Scotch law. 
Ordinances for regulating the forms of pro- 
ceeding, befcre the court of session, in the 
administration of justice, made by the judges, 
who have the power by virtue of a Seotch 
act of parliament passed in 1540. Ersk. 
Prin. § 14 


ACTUAL. Real; substantial; existing 
presently in act, having a valid objective ex- 
istenca, as opposed to that which is merely 
theoretical or possible. 

Something real, in opposition to construct- 
tyeor speculative; something existing in act. 
81 Conn. 213. 


ACTUAL CASH VALUE. In insur- 
ance. The stm of money the insured gouds 
would have brought for cash, at the market 
price, at the time when and place where they 
were destroyed by fre. 4 Fed. Rep. 59. 


ACTUAL COST. The actual price paid 
for goods by a party, in the case of a real 
bona fide purchase, and not the market value 
of the goods. 2 Story, 422, 429; 2 Mas, 48; 
9 Gray, 226. 


ACTUAL DAMAGES. Real, substan- 
tial, and just damages. The amouat ad- 
judged to a complainant in compensation for 


In old Seotch law. An 


ACTUAL POSSESSION 


his actua! and real loss or damage; opposed 
to “nominal damages,” which is a trifling 
sum awarded as a matter of course, and nob 
in compensation, but merely in recognition of 
the fact that his right has been technically 
violated; and opposed also to “exemplary” 
or “punitive” damages, the latter being in 
excess of the real loss, and intended asa pun- 
ishment to the wrong-doer, or {from motives 
of public policy) to discourage a repetition of 
such acts. 


ACTUAL DELIVERY. In the law of 
sales, actual delivery consists in the giving 
real possession of the thing sold to the ven- 
dee or his servants or special agents who are 
identified with him inlaw and represent him. 
Constructive delivery is a general term, com- 
prehending all those acts which, although 
not truly couferring a real possession of the 
thing sold on the vendee, have been held, by 
construction of law, equivalent toacts of real 
delivery. In this sense constructive delivery 
includes symbolical delivery and all those 
traditiones ficte which haye been admitted 
into the law as sufficient to vest the absolute 
property in the vendee and bar the rights of 
lien and stoppage im trensitu, such as mark- 
ing and setting apart the goods as belonging 
to the vendea, charging him with warehouse 
rent, etc. 1 Rawle, 19. 


ACTUAL FRAUD. Actual fraud im- 
plies deceit, artifice, trick, design, some di- 
rect and active operation of the mind. Con- 
structive fraud is indirect, and may be im- 
plied from some other act or omission to act, 
which may be, in moral contemplation, en- 
tirely innocent, *but which, without the ex- 
planation or actual proof of its innocence, i3 | 
evidenceof fraud. 35 Barb. 457 

A notice expressly 


ACTUAL NOTICE. 
and actually given, and brought home to the 
party directly, in distinction from one in- J 
ferred or imputed by the law on account of 
the existence of means of knowledge. 


ACTUAL OCCUPATION. An open, 
visible occupancy as distinguished from the 
constructive one which follows the legal title. 


ACTUAL OUSTER. By “actual oust- 
er” is not meant a physical eviction, buta 
possession attended with such circumstances 
ag to evince a claim of exclusive right and 
title, and a denial of the right of the other 
tenants to participate in the profits, 45 
Towa, 287. 


ACTUAL POSSESSION. This term, Ni 
as used in the provisions of Rey. St. N. Y. 


5 


¢ 


E 


F 


K 


L 


ACTUAL POSSESSION 


p. 312, § 1, authorizing proceedings to com- 
pel the determination of claims to real prop- 
erty, means a possession in fact effected by 
actual entry upon the premises; an actual oc- 
supation. 59 N. Y. 154, 

It means an actual occupation or posses- 
sion in fact, as contradistinguished from that 
sonstructive one which the legal title draws 
after it. The word “actual” is used in the 
statute in opposition to virtual or construct- 
ive, and calls for an open, visible occupancy. 
7 Hun, 616. 


ACTUAL SALE. Lands are “actually 
sold” xt a tax sale, so as to entitle the treas- 
urer to the statutory fees, when the sale ig 
completed; when he has collected from the 
purchaser the amount of the bid. 5 Neb. 
272. 


ACTUAL TOTAL LOSS. In marine 
insurance. The total loss of the vessel cov- 
ered by a policy of insurance, by its real and 
substantive destruction, by injuries which 
leave it no longer existing in specie, by its 
being reduced to a wreck irretrievably be- 
yond repair, or by its being placed beyond 
the control of the insured and beyond his 
power of recovery, Distinguished from a 
constructive total loss, which occurs where 
the vessel, though injured by the perils in- 
sured against, remains in specie and capable 
of repair or recovery, but at such an ex- 
pense, or under such other conditions, that 
the insured may claim the whole amount of 
the policy upon abandoning the vessel to the 
underwriters. 


“An actual total loss is where the vessel ceases 
to exist in specie,—becomes a ‘mere congeries of 
planks,’ incapable of being repaired; or where, by 
the peril insured against, it is placed beyond the 
control of the insured and beyond his power of re- 
covery. A constructive total loss is where the 
vessel remains in specie, and is susceptible of re- 
pairs or recovery, but at an expense, according to 
the rule of the English common law, exceeding its 
value when restored, or, according to the terms of 
this policy, where ‘the injury is equivalent to fifty 
per cent. of the agreed value in the policy,’ and 
where the insured abandons the vessel to the un- 
derwriter. In such cases the insured is entitled to 
indemnity as fora total loss. An exception to the 
rule requiring abandonment is found in cases 
where the loss occurs in foreign ports or seas, 
where it is impracticable to repair. In such cases 
the master may sell the vessel for the benefit 
of all concerned, and the insured may claim as 
for a total loss by accounting to the insurer for the 
amount realized on the sale. There are other ex- 
ceptions to the rule, but it is sufficient now to say 
that we have found uo case in which the doctrine 
of constructive total loss without abandonment 
has been admitted, where the injured vessel re- 
mained in specie and was brought to its bome port 
by the insured. A well marked distinction between 


80 


ACTUS 


an actual and a constractive total loss is therefore 
found in this: that in the former no abandonment 
is necessary, while in the latter it is essential, 
unless the case be brought within some exception 
to the rule requiring it. A partial loss is where 
an injury results to the vessel from a perilinsured 
against, but where the loss is neither actually nor 
constructively totaL” 25 Ohio St. 64, Ses, also, 
96 U. 8. 645; 9 Hun, 383. 

ACTUARIUS. In Roman law, A no 
tary or clerk. One who drew the acts or 


statutes, or who wrote in brief the public acts. 


ACTUARY. In English ecclesiastical 
law. <A clerk that registers the acts and 
constitutions of the lower house of convoca- 
tion; or a registrar in « court christian. 

Also an officer appointed to keep savings 
banks accounts; the computing officer of an 
insurance company; a person skilled in cal- 
culating the value of life interests, annui- 
ties, and insurances. 


ACTUM. A deed; something done. 


ACTUS. In the civil law. A species 
of right of way, consisting in the right of 
driving cattle, or a carriage, over the land 
subject to the servitude, Inst. 2,3, pr. Ibis 
sometimes translated a “road,” and included 
the kind of way termed “tter,” or path. Lord 
Coke, who adopts the term “actus” from 
Bracton, defines it a foot and horse way, vul- 
garly called “pack and prime way;” but dis- 
tinguishes it from acart-way. Co. Litt. 56a.. 

In old English law. An act of partia- 
ment; a statute. A distinction, however, 
was sometimes made between actus-and sieé- 
utum. Actus parliamenti was an act made 
by the lords and commons; and it became 
statutum, when it received the King’s con- 
sent. Barring. Obs. St. 46, note 6. 


ACTUS. Inthecivillaw. An act or ac- 
tion. Won tantum verbis, sed etiam actu, 
not only by words, but also by act. Dig. 46, 
8, 5. 


Actus curie neminem gravabit. An 
act of the court shall prejudice no man. 
Jenk. Cent. 118. Wherea delay in an action 
is the act of the court, neither party shall 
suller for it. 


Actus Dei nemini est damnosus. 
act of God is hurtful to no one, 


The 
2 Inst. 287. 


Actus Dei nemini facit injuriam. The 
act of God does injury to no one.. 2 Bi. 
Comm. 122. A thing which is inevitable by 
the act of God, which no industry can avoid, 
nor policy prevent, will not be construed te 
the prejudice of any person in whom there 
was no laches. Broom, Max. 230. 


_ 


y 


ACTUB 


Actus inceptus, cujus perfectio pen- 
det ex yoluntate partium, revocarl po- 
test; si autem pendet ex voluntate ter- 
tie personz, vel ex contingenti, revo- 
eari non potest. An act already begun, 
the completion of which depends on the wil) 
of the parties, may be revoked; bul if it de- 
pend on the will of a third person, or on a 
contingency, it cannot be revoked. Bac. 
Max. reg. 20. 


Actus judiciarius coram non judice 
irritus habetur, de ministeriali autem a 
qguocunque provenit ratum esto. A ju- 
ficial act by a judge without jurisdiction is 
yoid; but a ministerial act, from whomsoever 
proceeding, may be ratified. Lofft, 458. 


Actus legis nemini est damnosus. The 
act of the Jaw is hurtful to no one. An act 
in law shall prejudice no man. % Inst. 287. 


Actus legis nemini facit injuriam. 
The act of the law does injury tono one. 5 
Coke, 116. 


Actus legitimi non recipiunt modum, 


Acts required to be done by law do not ad- | 


mit of qualification. 
Prine. 


Hob. 153; Branch, 


Actus me invito factus non est meus 
actus. An act done by me, against my will, 
ig not my act. Branch, Prine. 


Aetus non facit reum, nisi mens sit 
rea. An act does not make [the doer of it] 
guilty, unless the mind be guilty; that is, 
unless the intention be criminal. 3 Inst. 107. 
The intent and the act must both concur to 
coustitute the crime. Lord Kenyon, C. J., 
7 Term 514; Broom, Max. 306. 


Actus repugnus non potest in esse 
produci. A repugnant act cannot be brought 
into being, 7. ¢e., cannot be made effectual. 
Plowd. 355. 


Actus servi in iis quibus opera ejus 
communiter adhibita est, actus domini 
habetur. The uct of a servant in those 
things in which he is usually employed, is 
considered the act of his master. Lofft, 227. 


AD. Lat. At; by; for; near; on account 
of; to; until; upon. 


AD ABUNDANTIOREM CAUTE- 
LAM. L. Lat. For more abundant cau- 
tion, 2 How.State Tr. 1182. Otherwise ex- 
pressed, ad eautelam ex superabundantt. 
Id. 1163. 


AD ADMITTENDUM CLERICUM. 
For the admitting of the clerk. A writ in 


81 


AD CUSTUM 


the nature of an execution, commanding the 
bishop to admit his clerk, upon the success of 
the latter in a guare impedit. 


AD ALIUD EXAMEN. To another 
tribunal; belonging to another court, cogni- 
zaice, Or jurisdiction. 


AD ALIUM DIEM. At another day. 
A common phrase in the old reports, Yearb. 
P. 7 Hen. VI. 13. 


AD ASSISAS CAPIENDAS., 
assises; to take or hold the assises. 
fol. 110@; 3 Bl. Comm. 185. 
capiendam; to take an assise. 
1100. 


AD AUDIENDUM ET TERMINAN- 
DUM. Tohearand determine, St. Westm. 
2, cc. 29, 30. 


AD BARRAM. To the bar; at the bar. 
3 How. State Tr. 112. 


AD CAMPI PARTEM. Fora share of 
the field or land, for champert. Fleta, lib. 2, 
c. 36, § 4. 


AD CAPTUM VULGI. 
common understanding. 


To take 
Bract. 
Ad assisam 
Bract. fol. 


Adapted to the 


AD COLLIGENDUM BONA DE- 
FUNCTI. To collect the goods of the de- 
ceased. Special letters of administration 
granted to one or more persons, authorizing 
them to collect and preserve the goods of the 
deceased, are so called. 2 Bl. Comm. 505; 2 
Steph. Comm. 241. These are otherwise 
termed “letters ed colligendum,” and the par- 
ty to whom they are granted, a “collector.” 


AD COMMUNEM LEGEM. At com- 
mon law. The name of a writ of entry (now 
obsolete) brought by the reversioners after the 
death of the life tenant, for the recovery of 
lands wrongfully alienated by him. 


AD COMPARENDUM. Toappear. Ad 
comparendum, et ad standum jurt, to appear 
and to stand to the law, or abide the judg- 
ment of the court. Cro. Jac, 67. 


AD COMPOTUM REDDENDUM. To 
render an account. St. Westm. 2, ec. 11. 


AD CURIAM. Atacourt. 
To court. 
court. 


AD CUSTAGIA. At the costs. 
lier; Cowell; Whishaw. 


I Salk. 195. 
Ad curiam vecere, to summon ta 


Toul- 


AD CUSTUM. Atthecost. 1B). Comm. Mv 


314, 


AUD DAMNUM 


AD DAMNUM. Inpleading. “To the 
dainage.” The technical name of that clause 
of the writ or declaration which contains a 
statement of the plaintiff’s money loss, or the 
damages which he claims. 


AD DEFENDENDUM. Todefend. 1 
Bl. Comm, 227. 


AD DIEM. At a day; at the day. 
Townsh. P), 23. Ad certum diem, at a cer- 
tain day. 2 Strange, 747. Solvit ad diem; 
he paid at or on the day. 1 Chit. Pl. 485. 


Ad ea que frequentius accidunt jura 
adaptantur. Laws are adapted to those 
eases which most frequently occur. 2 Inst. 
137; Broom, Max. 43. 

Laws are adapted to cases which frequently 
occur. A statute, which, construed accord- 
ing to its plain words, is, in all cases of or- 
dinary occurrence, in no degree inconsistent 
or unreasonable, should not be varied by 
construction in every case, merely because 
there is one possible but highly improbable 
zase in which the law would operate with 
great severity and against our notions of jus- 
tice. The utmost that can be contended is 
that the construction of the statute should be 
varied in that particular case, so as to obviate 
the injustice. 7 Exch. 549; 8 Exch. 778. 


AD EFFECTUM, Tothe effect, or end, 
Co. Litt. 204@; 2 Crabb, Real Prop. p. 802, 
§ 2143. Ad effeetum sequentem, to the effect 
following. 2Salk. 417. 


AD EXCAMBIUM, For exchange; for 
compensation. Bract. fol. 126, 378. 


AD EXHAREDATIONEM. To the 
disherison, or disinheriting; to the injury of 
the inheritance. lract. fol. lia; $8 Bi. 
Comm. 288 Formal words in the old writs 
of waste. 


AD EXITUM. At issue; at the end (of 
the pleadings.) Steph. Pl. 24. 


AD FACIENDUM. To do. Co. Litt. 
204a. Ad faciendum, subjiciendum et re- 
cipiendum, to do, submit to, and receive, 
Ad fauciendam juratam iliam,; to make up 
that jury. Fleta, lib, 2, c. 65, § 12. 


AD FACTUM PRASTANDUM. In 
Scotch law. A name descriptive of a class 
of obligations marked by unusual severity. 
A debtor who is under an obligation of this 
sind cannot claim the benefit of the act of 
grace, the privilege of sanctuary, or the ces- 
sio bonorum. Ersk. Inst. lib. 3, tit. 3, § 62. 


32 AD INSTANTIAM 


AD FEODI FIRMAM. 
Fleta, lib. 2, ¢. 50, § 80. 


AD FIDEM. In allegiance. 2 Kent, 
Comm. 56. Subjects born ad jidem are those 
born in allegiance. 


AD FILUM AQUA. To the thread of 
the water; to the central line, or middle of 
the stream. Usgque ad filum aque, as far as 
the thread of the stream. Bract. fol. 2086; 
235a. A phrase of frequent occurrence in 
modern law; of which ad medium filum 
ague (gq. v.) is another form. 


AD FILUM VIZ. Tothe middle of the 
way; tothe central lineof the road. 8 Mete. 
(Mass.) 260. 


AD FINEM. Abbreviated ad jin. To 
the end. It is used in citations to books, 
as a direction to read from the place des- 
ignated to the end of the chapter, section, 
etc. Ad finem litis, atthe end of the suit. 


AD FIRMAM. Tofarm. Derived from 
an old Saxon word denoting rent. Ad Jir- 
mam noctis was a fine or penalty equal in 
amount to the estimated cost of entertaining 
the king for one night. Cowell. Ad feodt 
jizmam, to fee farm. Spelman. 


To fee farm. 


AD GAOLAS DELIBERANDAS. To 
deliver the gaols; toempty the gaols. Dract. 
fol. 1096. Ad gaolam deliberandam, to de- 
liver fhe gaol; to make gaol delivery. Bract. 
fol. 1108. 


AD GRAVAMEN. Tothe grievance, in- 
jury, or oppression. Feta, lib, 2, c. 47, § 10. 


AD HOMINEM. To the person. A 
term used in logic with reference to a per- 
sonal argument. 


AD HUNC DIEM. 
Leon. 90, 


AD IDEM. To the same point, or effect. 
Ad idem facit, it makes to or goes to estab- 
lish the same point. Bract. fol. 278. 


AD INDE. Thereunto. Ad inde requi- 
situs, thereunto required. Townsh. Vl. 22, 


AD INFINITUM. Without limit; to 
an infinite extent; indefinitely. 


AD INQUIRENDUM. To inquire; a 
writ of inquiry; a judicial writ, commanding 
inquiry to be made of any thing relating to 
a cause pending in court. Cowell. 


AD INSTANTIAM. At the instance. 
2 Mod. 44. Ad instantiam partis, at the 
instance of a party. Hale, Com. Law, 28. 


At this day. 1 


) INTERIM 


Inthe meantime. An 
im. ip one appointed to fill a 
ey, or to discharge the du- 
during the absence or tem- 
y of its regular incumbent. 


Ti. 


JDICIUM. To judgment; to court. 
um provecare,; to summon to court; 
ence an action; a term of the Roman 
Dig. 5, 1, 18, 14. 


JUNGENDUM AUXILIUM. To 
in aid; to join in aid. See Arp 


URA REGIS. To the rights of 
; a writ which was brought by the 
jerk, presented to a living, against 
who endeavored to eject him, to the 
udice of the king’s title. Reg. Writs, 61. 


free, or unconfined. 
large. Plowd. 37. 
t large; giving details, or particulars; in 
A special verdict was formerly 
da verdict at large. Plowd. 92. — 


AD LITEM. For the suit; for the pur- 
poses of the suit; pending thesuit, A guard- 
fan ad détem is a guardian appointed to pros- 
-ecuie or defend a suit on bebalf of a party in- 
eapacitated by infaney or other wise. 


AD LUCRANDUM VEL PERDEN- 
DUM. For gain or loss. Emphatic words 
in the old warrants of attorney, Reg. Orig. 
21, et seq. Sometimes expressed in English, 

“to lose and gain.” Plowd. 201. 


Ire ad larguim, to go at 


’ AD MAJOREM CAUTELAM, For 
greater security. 2 How. State Tr. 1182. 


AD MANUM,. At hand; ready for use. 
Et querens sectam habeat ad manwum,; and 
the plaintiff immediately have his suit ready. 
Fleta, lib. 2, ¢. 44, § 2. 


AD MEDIUM FILUM aQUZ. To 
the middle thread of the stream. 
AD MEDIUM FILUM VIM. Te the 


middle thread of the way. 


| AD MELIUS INQUIRENDUM, A 
writ directed to a coroner commanding him 
to hoid a second inguest. See 45 Law J. Q. 


B, 711. 


AD MORDENDUM ASSUETUS. Ac- 
customed to bite. Cro. Car. 254. A material 
 averment in declarations for damage done by 
Adog to persons or animals. 1 Chit. Pl. 388; 
2 Chit. Pl. 597. 
AM, DIOT.LAW—S 


83 AND QUOD 


AD NOCUMENTUM. Tothe nuisance, 
or annoyance. Fleta, lib. 2,c.52,§19. Ad 
nocumentum liberi tenementi sui, te the 
nuisance of his freehold. Formal words in 
the old assise of nuisance. 8 Bi Comm. 221, B 


Ad officium justiciariorum spectat, 
unicuique coram eis placitanti justitiam 
exhibere. It is the duty of justices to ad- 
minister justice to every one pleading before 
them. 2 Inst. 461. 


AD OSTENDENDUM. To show. 
Formal words in old writs. Fleta, lib. 4, c. 
65, § 12. 


AD OSTIUM ECCLESIA. At the D 
door of the church, Qne of the five species 
of dower formerly recognized by the English 
law. 1 Washb. Real Prop. 149; 2 Bl. Comm. 
182. E 


Ad proximum antecedons fiat rolatio 
nisi impediatur sententi@. Relative words 
refer to the nearest antecedent, unless it be 
prevented by the context. Jenk. Cent. 180. 


AD QU#RIMONIAM, On complaint 
of. 


AD QUEM. Towhich. A term used in 
the computation of time or distance, as cor- G 
relative to a guo; denotes the end or termi- 
nal point. See A Quo. 


Ad questiones facti non respondent 
judices; ad questiones legis non re- 
spondent juratores. Judges do not an- H 
swer questions of fact; juries do not answer 
questions of law. 8 Coke, 308; Co. Litt. 
295. 


AD QUOD CURIA CONCORDAVIT. | 
To which the court agreed. Yearb. P. 20 
Hen, VI, 27. 


AD QUOD DAMNUM, The name ofa 
writ formerly issuing from the English chan- j 
cery, commanding the sheriff to make in- 
quiry “to what damage” a specified act, if 
done, willtend. Ad gued damnum is a writ 
which ought to be sued before the king grants 
certain liberties, as a fair, market, or such 
like, which may be prejudicial to others, and 
thereby it should be inquired whether it will 
be a prejudice to grant them, and to whom it 
wiil be prejudicial, and what prejudice will I 
come thereby. ‘There is also another writ of 
ad quod damium, if any one will turn a 
common highway and lay out another way as 
beneficial. Termes de la Ley. 


AD QUOD NOW FUIT RESPONSUM. M 
To which there was no answer. A phrase 


oy 


AD RATIONEM PONERE 


used in the reports, where a point advanced 
in argument by one party was not denied by 
the other; or where a point or argument of 
counsel was not met or noticed by the court; 
or where an objection was met by the court, 
and not replied to by the counsel who raised 
it. 3 Coke, 9; 4 Coke, 40. 


AD RATIONEM PONERE. A tech- 
nical expression in the old records of the Ex- 
chequer, signifying, to put to the bar and in- 
terrogate as toa charge made; to arraign on 
a trial. 


AD RECOGNOSCENDUM. To recog- 
nize. Fleta, lib. 2, c. 65, § 12. Formal 
words in old writs. 


Ad recte docendum oportet, primum 
inquirere nomina, quia rerum cognitio 
& nominibus rerum dependet. In order 
rightly to comprehend a thing, inquire first 
into the names, for a right knowledge of 
things depends upon their names. Co. Litt. 
68. 


AD REPARATIONEM ET SUSTEN- 
VATIONEM. For repairing and keeping 
in suitable condition. 


AD RESPONDENDUM. For answer- 
ing; to mmake answer; words used in certain 
writs employed for bringing a person before 
the court to make answer in defense in a pro- 
ceeding. Thus there is a capias ad respon- 
dendum, q.%.; alsoa habeas corpus ad re- 
spondendum. 


AD SATISFACIENDUM. To satisfy. 
The emphatic words of the writ of capias ad 
satisfaciendum, which requires the sheriff to 
take the person of the defendant to satis/y 
the plaintiff’s claim. 


AD SECTAM. At the suit of. Com- 
monly abbreviated to ads. Used in entering 
and indexing the names of eases, where it is 
desired that the name of the defendant should 
come first. Thus, “B. ads. A.” indicates 


that 1. is defendant in an action brought by | 


A., and the title so written would be an in- 
version of the more usual form “A. o B.” 

Au affidavit of merits, on the same paper 
with the pleas, by a defendant, entitled “C. 
D. ads. A. B.,” is the same in law as if en- 
titled “A. B. ©. C. D.,” and is properly en- 
titled, and it is error to strike the pleas from 
the files as for want of a sufficient affidavit. 
uO ILL. 11, 


AD STUDENDUM ET ORANDUM. 
for studying and praying; for the promotion 
vt learning and religion. A phrase applied 


84 AD VITAM 


to colleges and universities. 1 Bl Comm. 


467; T. Raym. 101. 


AD TERMINUM ANNORUM. Fora 
term of years. 


AD TERMINUM QUI PRETERIT. 
For aterm which has passed. Words in the. 
Latin form of the writ of entry employed a- 
commen law to recover, on behalf of a land. 
lord, possession of premises, from a tenant 
holding over after the expiration of the term 
for which they were demised. Sea Fitzh. 
Nat. Brev. 201. 


Ad tristem partem strenua est sus- 
picio. Suspicion lies heavy on the unfortu- 
nate side. 


AD TUNC ET IBIDEM. In pleading. - 
The Latin name of that clause of an indict- 
ment containing the statement of the subject- 
matter “then and there being found.” 


AD ULTIMAM VIM TERMINO- 
RUM. To the most extended import of the 
terms; In a sense as universal as the terms 
will reach. 2 Eden, 54, 


AD USUM ET COMMODUM. 
use and benefit, 


AD VALENTIAM. 
AbD VALOREM. 


AD VALOREM. According to value. 
Duties are either ad valorem or specific; the 
former when the duty is laid in the form of a 
percentage on the value of the property; the 
latter where it is imposed as a fixed sum on 
each article of a class without regard to its 
value. 

The term ad valorem tax is as well defined 
and fixed as any other used in political econ- 
omy or legislation, and simply means a tax or 
duty upon the value of the article or thing 
subject to taxation, 24 Miss, 501. 


To the 


To the value. See 


AD VENTREM INSPICIENDUM. To 
inspect the womb. <A writ for the summon- 
ing of a jury of matrons to determine the 
question of pregnancy. 


Ad vim magorem vel ad casus fortui- 
tus non tenetur quis, nisi sua culpa im- 
tervenerit. No cone is held to answer for 
the effects of a superior force, or of accidents, 
unless his own fault has contributed. Fleta, 
lib. 2, ¢. 72, § 16. 


AD VITAM. For life. Bract. fol. 186. 
in feodo, vel ad vitam, in fee, or for life. 
Id. 


AD VITAM AUT CULPAM 


VITAM AUT CULPAM. For life 
fanlt. This phrase describes the 
an office which is otherwise said to 
Id “for life or during good behavior.” It 
alent to gquamdiu bene se gesserit. 


VOLUNTATEM. At will. Bract. 
7a. Ad voluntatem domini, at the will 
the lord, 


AD WARACTUM. To fallow. Bract. 
fol. 228. See WaARAcTUM. 


ADAWLUT. Corrupted from Adalat, 
justice, equity; acourtof justice. Theterms 
“Dewanny Adawlut” and “Foujdarry Adaw- 
lut” denote the civil and criminal courts of 
justice in India. Wharton. 


ADCORDABILIS DENARITI. Money 
paid by a vassal to his lord upon the selling 
or exchanging of a feud. Ene. Lond. 


ADDICERE, Lat. In the civil law. 
To adjudge or condemn; to assign, allot, or 
deliver; to sell. In the Roman law, addico 
' was one of the three words used to express 
| the extent of the civil jurisdiction of the 
preetors. 


ADDICTIO. In the Roman law. The 
\ giving up to a creditor of his debtor’s persun 
by a magistrate; also the transfer of the 
debtor's goods to one who assimes his liabil- 
ities. 


Additio probat minoritatem. An ad- 

dition [to a name] proves or shows minority 

or inferiority. 4 Inst. 80; Wing. Max. 211, 

max. 60. This maxim is applied by Lord 

Coke to courts, and terms of law; minoritas 

being understood in the sense of difference, 

inferiority, or qualification. Thus, the style 

of the king’s bench is coram rege, and the 

Btyleof thecourt of chancery is coram dom- 

i ino vege in eancellaria; the addition show- 

ing the difference. 4Inst. 80. By the word 

| “fee” is intended fee-simpie, fee-tail not 

being intended by it, unless there be added to 

it the addition of the word “tail.” 2 Bl. 
Comm. 106; Litt. § 1. 


ADDITION. Whatever is added to a 
man’s name by way of title or description, 
as additions of mystery, place, or degree. 
Cowell. 

| In English law, there are four kindsof ad- 
ditions,—additions of estate, such as yeoman, 
gentleman, esquire; additions of degree, or 
names of dignity, as knight, earl, marquis, 
duke; additions of trade, mystery, or occupa- 
tion, a8 Scrivener, painter, mason, carpenter; 


As 
ii 


35 


ADEEM 


and additions of plece of residence, as Lon- 
don, Chester, ete. The only additions reeog- 
nized in American law are those of mystery 
and residence, 

In the law of liens, Within the mean- 
ing of the mechanie’s lien law, an “addition” 
to a building must be a lateral addition. It 
must occupy ground without the limits of the 
building to which it constitutes an addition, 
so that the lien shall be upon the building 
formed by the addition and the land upon 
which it stands. An alteration in a former 
building, by adding to its height, or to its 
depth, or to the extent of its interior accom- 
modations, is merely an “alteration,” and nut 
an “addition.” Putting a new story on an 
old building is not an addition. 27 N. J. 
Law, 182. 

In French law. <A supplementary pro- 
cess to obtain additional information. Guyot, 
Repert. 


ADDITIONAL. This term embraces the 
idea of joining or uniting one thing to an- 
other, so as thereby to form one aggregate. 
Thus, “additional security” imports a secu- 
rity, which, united with or joined to the 
former one, is deemed to make it, as an ag- 
gregate, suilicient asa security from the be- 
ginuing. $3 Miss. 626. 


ADDITIONALES. In the law of con- 
tracts. Additional terms or propositions to 
be added to a former agreement. 


ADDONE, Addonne. L. Fr. Givento. 
Kelham. 
ADDRESS. That part of a bill in equity 


wherein is given the appropriate and technie- 
al description of the court in which the bill 
is filed. 

The word is sometimes used as descriptive 
of a formal document, embodying a request, 
presented to the governor of a state by one or 
both branches of the legislative body, desir- 
ing him to perform some executive act. 

A place of business or residence. 


ADDUCED. “The word ‘adduced’ is 
broader in its signification than the word 
‘offered,’ and, looking to the whole state 
ment in relation to the evidence below, we 
think if sufficiently appears that all of the 
evidence isin the record.” 106 Ind. 84,5 N. 
E. Rep. 882. 


ADEEM. To take away, recall, or re 
voke. To satisfy a legacy by some gift or 
substituted disposition, made by the testator, 
in advance. See ADEMPTION. 


ADELANTADO 3 


ADELANTADO. In Spanish law. A 
wovernor of 4 province; a president or presi- 
dent judge; a judge having jurisdiction over 
a kingdom, or over certain provinces only. 
So called from having authority over the 
judges of those places. Las Partidas, pt. 3, 
tit. 4, 1. 1, €. 


ADELING or ATHELING. Noble; 
excellent. <A title of honor among the An- 
glo-Saxons, properly belonging to the king’s 
children. Spelman. 


ADEMPTIO, Lat. In the civil law. A 
revocation of alegacy; anademption. Inst. 
2, 21, pr. Where it was expressly trans- 
ferred from one person to another, it was 
called translatio, Id. 2, 21, 1; Dig. 34, 4. 


ADEMPTION. The revocation, recalling, | 
or cancellation of a legacy, according to the 
apparent intention of the testator, implied by 
the law from acts done by him in his life, 
though such acts do not amount to an ex- 
press revocation of it. ; 


“The word ‘aderaption’ is the most significan 
because, being a term of art, and never used for 
any other purpose, itdoes not suggest any idea for- 
eign to that intended to beconveyed. Itis used to 
describe the act by which the testator pays to his 
legatee, in his life-time, a general legacy which 
by his will ke had proposed to give him at his 
death. (1 Rop. Leg. p, 305.) It is also used to 
dénote the act by which 4 specific legacy has be- 
come inoperative on account of the testator hay- 
ing parted with the subject.” 16 N. Y. 40, 

Ademption, in strictness, is predicable only of 
specific, and satisiaction of general legacies. 9 
Barb. 35, 56; @ Duer, 477, 541. 


ADEO. Lat. So, as. 
tegre, as fully and entirely. 


Adeo plene et in- 
10 Coke, 65. 


“ADEQUATE CAUSE.” In eriminal 
law. Adequate cause for the passion which 
reduces a homicide committed under its in- 
fluence from the grade of murder to man- 
slanghter, means such cause as would com- 
monly produce a degree of anger, rage, re 
sentment, or terror, in a person of ordinary 
temper, sufficient to render the mind inea- 
pable of cool reflection. Insulting words or 
gestures, or an assault and battery so slight 
as to show no intention to inflict pain or ine 
jury, or an injury to property unaccompanied 
by violence are not adequate causes. 2 Tex. 
App. 100; 7 Tex. App. 396; 10 Tex. App. 
421. 


ADEQUATE CONSIDERATION, One 
which is equal, or reasonably proportioned, 
to the value of that for which itis given, 1 
Story, Eg. Jur. §§ 244-247. 


ADJACENT 


ADHQUATE REMEDY. One vested in 
the complainant, to which he may at all 
times resort at his own option, fully and 
freely, without let or hindrance. 54 Conn. 
249. 


ADESSE. In thecivillaw. Tobe pres. 
ent; the opposite of abesse. Calvin. 


ADFERRUMINATIO. Inthe civil law 
The welding together of iron; a species of 
adjunctio, {q.¥.) Called also ferruminatio, 
Mackelid. Rom. Law, § 276; Dig. 6, 1, 23, 5. 


ADHERENCE. In Scotch law. The 
name of a form of action by which the mut- 
ual obligation of marriage may be enforced 
by either party. Bell, It corresponds tothe 
English action for the restitution of conjugal 
rights, 


ADHERING. Joining, leagued with, 
cleaving to; as, “adhering to the enemies of 
the Uniled States.” 

Rebels, being citizens, are not “enemies,” 
within the meaning of the constitution; 
hence a conviction for treason, in promoting 
a rebellion, cannot be sustained under that 
branch of tbe constitutional definition which 
speaks of “adhering to their enemies, giving 
them aid and comfort,” 2 Abb, (0, 8.) 364. 


ADHIBERE. In the civillaw. To ap. 
ply; to employ; to exercise; to use. <Ad/i- 
bere diligentiam, to use care. Adhibtere vim, 
to employ foree. 


ADIATION. A term usedint’. ‘aws of 
Holland for the application of property by an 
executor. Wharton. 


ADIEV. L. Fr. Without day. A com. 
mon term in the Year Books, implying final 
dismissal from court, 


ADIRATUS. Lost; strayed; a prica or 
value set upon things stolen or lost, as a ree- 
ompense to the owner. Cowell. 


ADIT. In mining law. A lateral en- 
trance or passage into a mine; the opening 
by which a mine is entered, or by which water 
and ores are carried away; a horizontal exca- 
vation in and along a lode. 9 Colo. 207, 11 
Pac. Rep. 80; 6 Colo. 278. 


ADITUS. An approach; a way; a pol 
licway. Co. Litt. 56a. 


ADJACENT. Lying near or close to; 
contiguous, The difference between adja- 
cent and adjoining seems to be that the for- 
mer implies that the two objects are not 
widely separated, though they may not actual- 


ADJECTIVE LAW 


while adjoining imports that they 
so joined or united to each other that no 
jird object intervenes. 

JECTIVE LAW. The aggregate of 
of procedure or practice. As opposed 
£ body of law which the courts are es- 
tablished to administer, (called “substantive 
law,”) it means the rules according te which 
the substantive law is administered. That 
part of the law which provides a method for 


_ enforeing or maintaining rights, or obtaining 


redress for their invasion. 


ADJOINING. The word “adjoining,” 
in its etymological sense, means touching or 
contiguous, as distinguished from lying near 
to or adjacent. And the same meaning has 
been given to it when used in statutes. 52 
N.Y. 397, See ADJACENT. 


ADJOURN. To put off; defer; postpone. 
To postpone action of a convened court or 
body until anotler time specified, or indefi- 
nitely, the Jatter being usually called to ad- 
journ sine die. 

The primary signification of the term “ad- 
journ” is to put off or defer to another day 
specified. But it bas acquired also the mean- 
ing of suspending business for a time,—de- 
ferring, delaying. Probably, without some 
Wimitation, it would, when used with refer- 
ence to a sale on foreclosure, or any judicial 
proceeding, properly include the fixing of the 
time to which the postponement was made. 
14 How. Pr. 58. See, also, 5 N, Y. 22. 


ADJOURNAL. <A term applied in Scotch 
law and practice to the records of the criminal 
courts. The original records of criminal 
triala were called “bukis of adiornale,” or 
“hooks of adjournal,” few of which are now 
extant, An “act of adjournal” is an order 
of the court of juaticiary entered on its min- 
ules. 


Adjournamentum est ad diem dicere 
seu diom dare. An adjournment is to ap- 
pointuday or giveaday. 4 inst.27. Hence 
the formula “eat sine die.” 


ADJOURNATUR. L. Lat. It is ad- 
journed. A word with which the old reports 
yery frequentiy conclude a case. 1 Lad. 
Ruym. 602; 1 Show. 7; 1 Leon, 88. 


ADJOURNED SUMMONS. A sum- 
mnmens taken out in the chambers of a judge, 
and afterwards taken into court to be argued 
by counsel. 


ADJOURNED THRM., In practice. A 
continuance, by adjournment, of a regular 


37 


ADJUDICATION 


term. 4 Ohio St. 473. Distinguished from 
an “additional term,” which is a distinct 
term. Id. An adjourned term is a contin- 
uation of a previous or regular term; it is the 
same term prolonged, and the power of the 
court over the business which has been done, 
and the entries made at the regular term, 
continues. 22 Ala. 57. 


ADJOURNMENT. A puiting off or 
postponing of business or of a session until 
another time or place; the act of a court, leg- 
islative body, public meeting, or officer, by 
which the session or assembly is dissolved, 
either temporarily or finally, and the business 
in hand dismissed from consideration, either 
definitively or for anintervai. Ifthe adjourn- 
ment is final, it is said to be sine die. 

In the civillaw. A calling into court; a 
summoning at an appointed time. Du Cange. 


ADJOURNMENT DAY. A further 
day appointed by the judges at the regular 
sittings at #¢st préus to try issues of fact not 
then ready for trial. 


ADJOURNMENT DAY IN ERROR. 
In English practice. A day appointed some 
days before the end of the term at which mat- 
ters left undone on the aflirmance day are 
finished. 2 Tidd, Pr. 1176. 


ADJOURNMENT IN EYRE. The ap- 


| pointment of a day when the justices in eyre 


mean to sit again. 


ADJUDGE. To pass upon judicially; to 
decide, settle, or decree; to sentence or con- 
demn. 


ADJUDICATAIRE. In Canadian law. 
A purchaser at a sheriff's sale. See l Low. 
Can. 241; 10 Low. Can, 325, 


ADJUDICATE. To settle in the exercise 
of judicial anthority. To determine finaliy. 
Synonymous with @djudge in its strictest 
Bense. 


ADJUDICATIO, In the civillaw. An 
adjudication, Ths judgment of the court 
that the subject-matter is the property of one 
of the litigants; confirmation of title by judg- 
ment. Mackeld. Hom. Law, § 204. 


Cowell; Spelman. 


ADJUDICATION. The giving or pro- 
nouncing a judgment or decree in a cause; 
also the judgment given. The term is prin- 
cipally used in bankruptcy proceedings, the 
adjudication being the order which deelares 
the debtor to be a bankrupt. 


In French law. <A sale made at publia 
auction and upon compelition. Adjudica- 


ADJUDICATION 


tions are voluntary, judicial, or administra- 
tive. Duverger. 

In Seotch law. A species of diligence, 
or process for transferring the estate of a debt- 
or to acreditor, carried on as an ordinary ac- 
tion before the court of session. A species 
of judicial sale, redeemable by the debtor. A 
decreet of the lords of session, adjudging and 
appropriating a person’s lands, heredita- 
ments, or any heritable right to belong to his 
creditor, who is catled the “adjudger,” for 
payment or performance. Bell; Ersk. Inst. 
¢. 2, tit. 12, §§ 89-55; Forb. Inst. pt. 3, b. 1, 
ec. 2, tit. 6. 


ADJUDICATION CONTRA HARE- 
DITATEM JACENTEM. In Scotch law. 
When adebtor's heir apparent renounces the 


succession, any creditor may obtain a decree | 


cognitionis causa, the purpose of which is 
that the amount of the debt may be ascer- 
tained so that the reai estate may be ad- 
judged. 


ADJUDICATION IN IMPLEMENT. 
In Scotch law. An action by a grantee 
against his grantor tocompel him to coinplete 
the title. 


ADIJUNCTIO. In the civil law. Ad- 
junction; a species ot aecessio, whereby two 
things belonging to different proprietors are 
brought into firm connection with each other; 
such as interweaving, (intertextura,;) weld- 
ing together, (adferrumiuatio;) soldering 
together, (applumbetura;) painting, (piet- 
ura,;) writing, (seriptura,;)} building, (in- 
aedifieatio;) sowing, (satio;) and planting, 
(plantatio,) Inst. 2, 1, 26-34; Dig. 6, 1, 
23; Mackeld. Rom. Law, § 276. See Aconssio. 


ADJUNCTS, Additional judges some- 
times appointed in the English high court of 
delegates. See Shelf. Lun. 310. 


ADJUNCTUM ACCESSORIUM. An 
Becessory or appurtenance. 


ADSJURATION. 
upen oath. 


A swearing or binding 


ADJUST, To bring to proper relutions; 
to settle; to determine and apportion an 
amount due, 


ADJUSTMENT. In the law of insur- 
ance, the adjustment of a loss is the ascer- 
tainment of its amount and the ratable dis- 
tribution of if among those liable to pay it; 
the settling and ascertaining the amount of 
the indemnity which the assured, after all al- 
lowances and deductions wade, is entitled to 


88 ADMENSURATIO 


portion which each underwriter is liable to 
pay. Marsh. Ins, (4th ld.) 499; 2 Phil. Ins. 
$§ 1814, 1815. 


Adjuvari quippe nos, non decipi, bene- 
ficio oportet. We ought to be favored, not 
injured, by that which is intended for our 
benefit. (The species of bailment called 
“loan” must be to the advantage of the bor- 
rower, notto his detriment.) Story, Bail. 
§ 275. See 8 EL & Bi 1051. 


ADLAMWR. In Welsh law. A pro 
prictor who, for some cause, entered the 
service of another proprietor, and left him 
after the expiration of a year andaday. He 
was liable to the payment of 30 pence to his 
patron. Wharton. 


ADLEGIARE, 
crime by oath. 


ADMANUENSIS. <A person who swore 
by laying his hands on the book. 


ADMEASUREMENT. Ascertainment 
by measure; measuring out; assignment or 
apportionment by measure, that is, by fixed 


To purge one’s self of a 


| quantity or value, by certain limits, or in defi- 
| nite and fixed proportions, 


ADMEASUREMENT, WRIT OF. It 
lay agninst persons who usurped more than 
their share, in the two following cases: Ad- 
measurement of dower, where the widow held 
from the heir more land, etc., as dower, than 
rightly belonged to her; and admeasurement 
of pasture, which lay where any one having 
common of pasture surcharged the common. 
Termes de la Ley. 


ADMEASUREMENT OF DOWER. 
In practice. A remedy which lay for the heir 
on reaching his majority to rectify an assign- 
ment of dower made during his minority, by 
which the doweress had received more than 
she was legally entitled to. 2 Bl. Comm. 136; 
Gilb. Uses, 379. 

in some of the states the statutory pro- 
ceeding enabling a widow to compel the as- 
signiment of dower is called “admeasurement 
of dower.” 


ADMEASUREMENT OF PASTURE. 
In English law. A writ which liea between 
those that have common of pasture append- 
ant, or by vicinage, in cases where any one 
or more of them surcharges the common 
with more cattle than they ought. Bract. fol. 
229a; 1 Crabb, Real Prop. p, 318, § 358. 


ADMENSURATIO. In old English law. 


receive under the policy, and fixing the pro | Admeagurement. Reg. Orig. 156, 157. 


ADMEZATORES 89 


ADMEZATORES. In old Italian law. 
Persons chosen by the consent of contending 
parties, to decide questions between them. 
Literally, mediators. Spelman. 


ADMINICLE. In Scotch law. An 
aid or support to something else. <A collat- 
eral deed or writing, referring to another 
which has been lost, and which it is in gen- 
eral necessary to produce before the tenor of 
the lost deed can be proved by parol evidence. 
Ersk. Inst. b. 4, tit. 1, § 55. 

Used as an English word in the statute of 
1 Edw. IV. ¢. 1, in the sense of aid, or sup- 
port. 

In the civil law. Imperfect proof. Merl. 
Repert. 


ADMINICULAR. (From adminicu- 
tum, q. v.) Auxiliary to. “The murder 
would be adminicular to the robbery,” (é. 
committed to accomplish it.) 38 Mason, 121. 


ADMINICULAR EVIDENCE. In ec- 
clesiastical law. Auxiliary or supplement- 
ary evidence; sucii as is presented for the 
purpose of explaining and completing other 
evidence. 


ADMINICULATE. To give adminicu- 
lar evidence. 


ADMINICULATOR. An officer in the 
Romish church, who administered to the 
wants of widows, orphans, and afflicted per- 
sons. Spelman. 


ADMINICULUM. An adminicle; a 
prop or support; an accessory thing. An 
aid or support to something else, whether a 
right or the evidence of one. It is princi- 
pally used to designate evidence adduced in 
aid or support of other evidence, which with- 
out it is imperfect. Brown. 


ADMINISTER. To discharge the duties 
of an oflice; to take charge of business; to 
manage affairs; to serve in the conduct of 
affairs, in the application of things to their 
uses; to settle and distribute the estate of a 
decedent. 

In physiology, and in criminal law, to ad- 
minister means to cause or procure a person 
to take some drug or other substance into 
his or her system; to direct and cause a med- 
icine, poison, or drug to be taken into the 
system. 8 Ohio St. 131; 34 N. Y. 2238; 11 
Pla. 247; 1 Moody, 114. 

Neither fraud nor deception isa necessary ingre- 
dient in the act of administering poison. ‘fo force 
poison into the stomach of another; to compel an- 


other by threats of violence to swallow poison; to 
furnish poison to another for the purpose and with 


ADMINISTRATION 


the intention that the person to whom it Is delly- 
ered shall commit suicide therewith, and which 
poison is accordingly taken by the suicide for that 
purpose; or te be present at the taking of poison 
by a suicide, participating in the taking thereof, 
by assistance, persuasion, or otherwise,—each and 
all of these are forms and modes of “administer- 
ing” poison. 23 Ohio St. 146. 


ADMINISTRATION. In public law. 
The administration of government means tlie 
practical management and direction of the 
executive department, or of the public ma- 
chinery or functions, or of the operations of 
the various organs of the sovereign. The 


| term “administration” is also conventionally 


applied to the whole class of public function- 
aries, or those in charge of the management 
of the executive department. 


ADMINISTRATION OF ESTATES. 
The management and settlement of the es- 
tate of an intestate, or of a testator who has 
no executor, performed under the supervision 
of a court, by a person duly qualified and le- 
gally appointed, and usually involving (1) 
the collection of the decedent's assets; (2) 
payment of debts and claims against him and 
expenses; (8) distributing the remainder of 
the estate among those entitled thereto. 

The term is applied broadly to denote the 
management of an estate by an executor, and 
also the management of estates of minors, 
lunatics, etc., in those cases where trustees 
have been appointed by authority of law to 
take charge of such estates in place of the 
legal owners. Bouvier. 

Administration is principally of the follow- 
ing kinds, viz.: 

Ad colligendum. That which is granted 
temporarily, for the purpose of collecting and 
preserving property of a perishable nature. 

Anciliary administration is auxiliary and 
subordinate tothe administration at the place 
of the decedent’s domicile; it may be taken 
out in any foreign state or country where as- 
sets are locally situated, and is merely for the 
purpose of collecting such assets and paying 
debts there. 

Cum testamento annexo, Administration 
with the will annexed, Administration 
granted in cases where a testator makes a 
will, without naming any executors; or where 
the executors who are named in the will are 
incompetent to act, or refuse to act; or in 
case of the death of the executors, or the sur- 
vivor of them. 2 Bl. Comm. 503, 504. 

De bouts non. Administration of the 
goods not administered. Administration 
granted for the purpose of administering 
such of the goods of a deceased person as 


ADMINISTRATION 40 


were not administered by the former exec- 
utor or administrator. 2 B1. Comm. 506. 

De bonis non cum testamento annexo. 
That which is granted when an executor dies 
leaving a part of the estate unadministered. 
3 Cush. 28; 4 Watts, 34, 38, 39. 

Durante absentia. That which is granted 
during the absence of the executor and until 
he has proved the will. 

Durante minori etate. Where an infant 
is made executor; in which case administra- 
tion with willannexed is granted to another, 
during the minority of such executor, and 
until he shall attain his lawful age to act. 
See Godo. 102. 

Foreign administration. That which ts 
exercised by virtue of authority properly 
conferred by a foreign power. 

Pendente tite. Administration during the 
suit. Administration granted during the 
pendency of a suit touching the validity of a 
will, 2 Bi. Comm. 503. 

Public administration is such as is con- 
ducted (in some jurisdictions) by an officer 
called the public administrator, who is ap- 
pointed to administer in cases where the in- 
testate has left no person entitled to apply for 
letters. 


ADMINISTRATION SUIT. In En- 
glish practice. A suit brought in chancery, by 
any one interested, for administration of a 
decedent’s estate, when there is doubt as to 
its solvency. Stimson. 


ADMINISTRATIVE LAW. That 
branch of public law which deals with the 
various organs of the sovereign power con- 
sidered as in motion, and prescribes in detail 
the manner of their activity, being concerned 
with such topics as the collection of the rev- 
enue, the regulation of the military and na- 
val forces, citizenship and naturalization, 
sanitary measures, poor laws, coinage, police, 
the public safety and morals, etc. See Holl. 
Jur. 305-307, 


ADMINISTRATOR, in the most usual 
sense of the word, is a person to whom let- 
ters of administration, that is, an authority 
to administer the estate of a deceased person, 
have been granted by the proper court. He 
resembles an executor, but, being appointed 
by the court, and not by the deceased, he has 
to give security for the due administration of 
the estate, by entering into a bond with 
sureties, called the administration bond. 
(Browne, Prob. Pr. 150.) Sweet. 

By the law of Scotland the father is what 
is called the “administrator-in-law” for his 


ADMIRALTY 


children. As such, he is ipso jure thelr tu- 
tor while they are pupils, and their curator 
during their minority. The father’s power 
extends over whatever estate may descend to 
his children, unless where that estate has 
been placed by the donor or grantor under 
the charge of special trustees or managers. 
This power in the father ceases by the child’s 
discontinuing to reside with him, unless he 
continues to live at the father’s expense; and 
with regard to daughters, it ceases on their 
marriage, the husband being the legal cura- 
tor of his wife. Bell. 

A public administrator is an officer author- 
ized by the statute law of several of the 
states to superintend the settlement of es- 
tates of persons dying without relatives en- 
titled to administer. 


ADMINISTRATOR. In the civil law. 
A manager or conductor of affairs, especially 
the affairs of another, in his name or behalf, 
A manager of public affairs in behalf of oth- 
ers. Calvin. A public officer, ruler, or gov- 
ernor. Nov. 95, gl.; Cod. 12, 8. 


ADMINISTRATRIX. A female who 
administers, or to whom letters of adminis- 
tration have been granted. 


ADMIRAL. In European law. <An 
officer who presided over the admiraliias, or 
callegtumammiralitatis, Loce. de Jur. Mar. 
lib. 2p 6e25, SIs 

In English law. A high officer or mag- 
istrate that hath the government of the king’s 
navy, and the hearing of all causes belong- 
ing to the. sea. Cowell. . 

In the navy. Admiral is also the title of 
high naval oflicers; they are of various grades, 
—rear admiral, vice-admiral, admiral, ad- 
miral of the fleet, the latter being the highest. 


ADMIRALITAS. L. Lat. Admiralty; 
the admiralty, or court of admiralty. 

In European law. An association of 
private armed vessels for mutual protection 
and defense against pirates and enemies. 


ADMIRALTY. A court exercising ju- 
risdiction over maritime causes, both civil 
and criminal, and marine affairs, commerce 
and navigation, controversies arising out of 
acts done upon or relating to the sea, and 
over questions of prize. 

Also, the system of jurisprudence relating 
to and growing out of the jurisdiction and 
practice of the admiralty courts. 

In English law. The executive depart- 
ment of state which presides over the naval 
forces of the kingdom. The normal head is 


ADMIRALTY 


the lord high admiral, but in practice the func- 
tions of the great office are discharged by sev- 
eral commissioners, of whom one is the chief, 
and iscalled the “First Lord.” He is assist- 
ed by other lords and by various secretaries. 
Also, the court of the admiral. 
The building where the lords of the ad- 
miralty transact business. 
In American law. A tribunal exercising 


41 


jurisdiction over all maritime contracts, torts, 


injuries, or offenses. 2 Pars. Mar. Law, 508. 


ADMISSIBLE. Proper to be received. 
As applied to evidence, the term means that 
it is of such a character that the court or 
judze is bound to receive it; that is, allow it 
to be introduced. 


ADMISSIBILITY. An objection to the 
admissibility of evidence in any cause can 
only be properly founded on the hypothesis 
that such testimony violates the law of evi- 
dencsin this: that the law prohibits the proof 
of the particular fact in the manner proposed, 
or because of its irrelevancy to the subject- 
matter of the inquiry. 7 Md. 87. 


ADMISSION. Inevidence. <A volun- 
tary acknowledgment, confession, or conces- 
sion of the existence of a fact or the truth of 
an allegation made bya party to the suit. 

In pleading. The concession or acknowl- 
edgment by one party of the truth of some 
matter alleged by the opposite party, made in 
a pleading, the effect of which is to narrow 
the area of facts or allegations requiring to 
be proved by evidence. 

In practice. The formal act of a court, 
by whieh attorneys or counsellors are recog- 
nized as officers of the court and are licensed 
to practice betore it. 

In corporations. The act of a corpora- 
tion or company by which an individual ac- 
quires the rights of a member of such corpo- 
ration or company. 

In English ecclesiastical law. The act 
of the bishop, who, on approval of the clerk 
presented by the patron, after examination, 
declares him fit to serve the cure of thie 
church to which he is presented, by the words 
“admitto tehahilem,” Ladmitthee able. Co. 
Litt. 344a; 4 Coke, 79; 1 Crabb, Real Prop. 
p. 138, § 123. 


ADMISSIONALIS. In European law. 
Anusher. Spelman. 
ADMIT. To allow, receive, or take; to 


suffer one to enter; to give possession; to li- 
cense. See ADMISSION. 


Bs 


ADOLESCENCE 


ADMITTANCE. In Englishlaw. The 
act of giving possession of a copyhold estate. 
It is of threes kinds: (1) Upon a voluntary 
grant by the lerd, where the land has es- 
cheated or reverted to him. (2) Upon swr- 
render by the former tenant. (3) Upon de- 
scent, Where the heir is tenant on his ances- 
tor’s death. 


ADMITTENDO CLERICO. A writ of 
execution upon aright of presentation to a 
benefice being recovered in qguare impedit, 
addressed to the bishop or his metropolitan, 
requiring him to admit and institute the 
clerk or presentee of the plaintiff. Reg. Orig. 
33a. 


ADMITTENDO IN SOCIUM. A writ 
for associating certain persons, as knights 
and other gentlemen of the county, to justices 
of assize on the circuit. Reg. Orig, 206. 


ADMONITIO TRINA. A triple or 
threefold warning, given, in old times, to a 
prisoner standing mute, before he was sub- 
jected to the peine forte et dure. 4B). Comm. 
325; 4 Steph. Comin. 391. 


ADMONITION. In ecclesiastical law, 
this is the lightest form of punishment, con- 
sisting in a reprimand and warning adminis- 
tered by the judge to the defendant. If the 
latter does not obey the admonition, he may 
be more severely punished, as by suspension, 
etc. 


ADMORTIZATION. The reduction of 
property of lands or tenements to mortmain, 
in the feudal customs. 


ADNEPOS. The son of a great-great- 
grandson. Calvin. 


ADNEPTIS. The daughter of a great- 
great-cranddaughter. ‘ Calvin. 


ADNICHILED. Annulled, 
made void. 28 Hen. VIII. 


ADNIHILARE. Inold English law. To 
annul; to make void; to reduce to nothing; 
to treat as nothing; to hold as or for nought. 


ADNOTATIO. In the civil law. The 
subscription of a name or signature to an in- 
strument. Cod. 4, 19, 5, 7. 

A rescript of the prince or emperor, signed 
with his own hand, or sign-manual. Cod. 1, 
19,1. “In the imperial law, casuai homicide 
was excused by the indulgence of the em- 
peror, signed with his own sign-manual, an- 
notatione principis.” 4 Bl. Comm. 187. 


ADOLESCENCE. That age which fol- 
lows puberty and precedes the age of major- 


cancelled, 


ADOPT 


ity. It commences for males at 14, and for fe- 


42 


males at 12 years completed, and continues 


till 21 years complete. 


ADOPT. To accept, appropriate, choose, 
or select; to make that one’s own (property 
_or act) which was not so originally; to take 
another's child and give him the rights and 
duties of one’s own. 

To adopt a route for the transportation of 
the mail means to take the steps necessary to 
cause the mail to be transported over that 
route. Dev. Ct. Cl. 47. 

To adopt a contract is to accept it as bind- 
ing, notwithstanding some defect which en- 
titles the party to repudiate it. Thus, when 
a person aflirms a voidable contract, or rati- 
fies a contract made by his agent beyond his 
authority, he ig said to adopt it. Sweet. 


ADOPTION. The act of one who takes 
another's child into his own family, treating 
him as his own, and giving him all the rights 
and duties of his own child. 

A juridical act creating between two per- 
sons certain relations, purely civil, of pater- 
nity and filiation. 6 Demol. § 1. 


ADOPTIVE ACT. Anact of parliament 
which comes into operation within a limited 
area upon being adopted, in manner pre- 
scribed therein, by the inhabitants of that 
area, 


ADOPTIVUS, Lat. Adoptive. Applied 
both to the parent adopting, and the cbild 
adopted. Inst. 2, 13, 4; Id. 3, 1, 10-14. 


ADPROMISSOR. In the civil and Scotch 
law. A guarantor, surety, or cautioner; a 
peculiar species of fidejussor ; one who adds 
his own promise to the promise given by the 
principal debtor, whence the name. 


ADQUIETO. Payment. 


ADRECTARE, 
make amends. 


Blount. 
To do right, satisfy, or 


ADRHAMIRE. In old European law, 
To undertake, declare, or promise solemnly; 
to pledge; to pledge one’s self to make oath. 
Spelman. 


ADRIFT. Sea-weed, between high and 
low water-mark, which has not been deposit- 
ed on the shore, and which during fluod-tide 
is moved by each rising and receding wave, 
is edrift, although the bottem of the mass 
may touch the beach. 2 Allen, 549. 


ADROGATION. Inthe civillaw. The 
adoption of one who was impwhes, that is, 


ADULTER 


ifa male, under fourleen years of age; if a 
female, under twelve. Dig. 1, 7, 17, 1. 


ADSCENDENTES. Lat. In the civil 
law. Ascendants. Dig. 23, 2, 68; Cod. 5, 
SO 


ADSCRIPTI GLEBA. Slaves who 
served the master of the soil, who were an- 
nexed to the land, and passed with it when 
it was conveyed. Calvin. 

In Scotland, as late as the reign of George IIL, 
laborers in collieries and salt works were bound to 
the coal-pit or salt work in which they were en- 


gaged, ina manner similar to that of the adseripti 
of the Romans. Bell 


ADSCRIPTUS. Inthe civillaw. Add- 
ed, annexed, or bound by or in writing; en- 
rolled, registered; united, joined, annexed, 
bound to, generally. Servus colone adscrip- 
tus, a Slave annexed to an estate as a culti- 
vator. Dig. 19, 2, 54,2. Pundus adscrip- 
tus, an estate bound to, or burdened with a 
duty. Cod. 11, 2, 3. 


ADSESSORES. Side judges. Assist- 
ants or advisers of the regular magistrates, 


| or appointed as their substitutes in certain 


Calvin. 


ADSTIPULATOR. In Roman law. An 
accessory party to a promise, who received 
the same promise as his principal did, and 
could equally receive and exact payment; or 
he only stipulated fora part of that for which 
the principal stipulated, and then his rights 
were co-extensive with the amount of his 
own stipulation. Sandars, Just. Inst. (5th 
Ed.) 348. 


ADULT. In the civillaw. A male in- 
fant who has attained the age of fourteen; a 
female infant who has attained the age of 
twelve. Dom. Liv. Prel. tit. 2, § 2, n. 8. 


In the common law. One of the full 
age of twenty-one. Swanst. Ch, 533. 


“The authorities all agree, so far as we are ad- 
vised, that at common law the word ‘adult’ signi- 
fies a person who has attained the full age of 21 
years. The word ‘adult’ seems to have a well-da- 
fined meaning, bothin law and in common accepta- 
tion. Mr, Bouvier defines the meaning of the word 
inthe civil law, with which we have no present 
concern, and says: ‘In the common law an adult 
is considered one of full age.? Mr. Wharton de- 
fines the word as signifying ‘a person of fullage.’ 
Mr. Webster gives as one of the meanings ‘one 
who has reached the years of manhood.’ * 10Tex 
App. 411; 11 Tex. App. 95. 


ADULTER. Lat. One who corrupts; 
one whoseduces another man’s wife. Adui- 


ter solidorum. A corruptor of metals; a 
counterfeiter. Calvin. 


ciuses. 


ADULTERA. In the civil law. An 
aadilteress; a woman guilty of adultery. Dig. 
#8, 5, 4, pr.; Id. 48, 5, 15, 8. 


ADULTERATION. The act of corrupt- 
‘ing or debasing. The term is generally ap- 
plied tothe act of mixing up with food or 
drink intended to be sold ether matters of an 
inferior quality, and usually of a more or less 
deleterious quality. 

It is not clear that the addition of a wholesoma 
article, a8 of pura water to milk, is adulterating. 
45 Park. Crim. R. $11. 


ADULTERATOR. Lat. In the civil 
daw. <A forger; acounterfeiter. <dAdullera- 
tores moneie, counterfeiters of money. Dig. 
48, 19, 16, 9. 


ADULTERINE. Begotten in an adul- 
‘terous intercourse. In the Roman and cangyn 
daw, adulterine bastards were distinguished 
from such as were the issue of two unmar- 
tied persons, and the former were treated 
with more severity, not being allowed the 
siatus of natural children, and being ineli- 
gible te holy orders. 


ADULTERINE GUILDS. Traders act- 
ing a3 a corporation without a charter, and 
‘paying a fine annually for permission to ex- 
-ercise their usurped privileges. Smith, Wealth 
Nat. b. 1, ¢. 10. 


ADULTERIUM. A fine anciently im- 
posed as a punishment for the commission of 
adultery. 


ADULTEROUS BASTARDY. Adul- 
“terous bastards are those produced by au un- 
awful connection between two persons, who, 
atthe time when the child was conceived, 
were, either of them or both, connected by 
‘Marriage with some other person. Civil Code 
La. art. 182. 


ADULTERY. Adultery is the voluntary 
‘sexual intercourse of a married person witha 
person other than the offender’s husband or 
wife, Civil Code Cal. § 93; 1 Bish. Mar. & 
Div. § 703; 6 Mete. 243; 36 Me, 261; 11 
Ga. 56, 

Adultery igs the unlawful voluntary sexual 
intercourse cf a married person with one of 
‘the opposite sex, and when the crime is com- 
mitted between parties, only one of whom is 
married, both are guilty of adultery. Pen. 
Code Dak. § 383. 

{t ia to be observed, however, that in some 
of the states it is held that this crime is com- 
mitted only when the women is married toa 
third person, and the unlawful commerce of 


ADULTERA BS 


ADVANTAGIUM 


a married man with an unmarried woman is 
not of the grade of aduitery, In some juris- 
dictions, also, a distinction is made belween 
double and single adultery, the former being 
committed where both parties are married to 
other persons, the latter where one only is so 
married. 


ADVANCH, «. To pay money or render 
other value before it is due; or to furnish 
capital in aid of a projected enterprise, in ex- 
pectation of return from it. 


ADVANCEMENT. Money or property 
given by a father to his child or presumptive 
heir, or expended by tlie former for the lat- 
ter’s benefit, by way of anticipation of the 
share which the child wili inherit in the fa- 
ther’s estate and intended to be deducted there- 
from. It is the latter cireumstance which 
differentiates an advancement from a gift or 
a lean. 

Advancement, in its legal acceptation, does 
not involve the idea of obligation or future 
liability toanswer, It is a pure and irrevoca- 
ble gift made by a parent toa cbild in antici- 
pation of such child’s future share of the par- 
ent’s estate, 13 Pa. St. 580, 


An advancement is any provision by a par- 
6nt made toand aceepted by a child out of his 
estate, either in money or property, daring 
his life-time, over and above the obligation of 
the parent for maintenance and education. 
Code Ga. 1882, § 2579. 

An “advancement by portion,” within the 
meaning of the statute, ig asum given by a 
parent to establish a child in life, (as by start- 
ing him in business,) or to make a provision 
for the child, (as on the marriage of a daugh- 
ter.) L. R. 20 Bq. 155, 


ADVANCES. Moneys paid before or in 
advance of the proper time of payment; money 
or commodities furnished on credit; a loan 
or gift, or money advanced to be repaid con- 
ditionally. See 51 Barb. 597, 612; 10 Barb, 
73, 

This word, when taken in its strict legal 
sense, docs not mean gifts, (advancements, ) 
and does mean a sort of loan; and, when 
taken in its ordinary and usual sense, it in- 
cludes both loans and gifts,— loans more 
readily, perhaps, than gifts. 25 Ga. 355. 

Payments advanced to the owner of prop- 
erty by a factor or broker on the price of 
goods which the latter has in his hands, or is 
to receive, for sale. 


ADVANTAGIUM. Inoldpleading. An M 
advantage. Co, Ent. 484; Townsh. Pl, 5). 


ADVENA 


ADVENA. In Roman law. One of for- 
sign birth, who has left hisown country and 
settled elsewhere, and who has not acquired 
citizenship in his new locality; often called 
albanus. Du Cange. 


ADVENT. A period of time recognized 
by the English common and ecclesiastical 
law, beginning on the Sunday that ‘falls 
either upon St. Andrew’s day, being the 30th 
of November, or the next to it, and continu- 
ing to Christmas day. Wharton. 


ADVENTITIOUS. That which comes 
Incidentally, fortuitously, or out of the regu- 
lar course. 


ADVENTITIUS. Lat. Fortuitous; in- 
cidental; that which comes from an unusual 
source. Adventitia bona are goods which 
fall to aman otherwise than by inheritance. 
Adventitia dos is a dowry or portion given 
by some friend other than the parent. 


ADVENTURA. Anadventure. 2 Mon. 
Angl. 615; Townsh. Pl. 50, Flotson, jet- 
son, and lagon are styled adventure maris, 
{adventures of the sea.) Hale, De Jure 
Mar. pt. 1, ¢. 7. 


ADVENTURE. In mercantile lew. 
Sending goods abroad under charge of a su- 
percargo or other agent, at the risk of the 
sender, to be disposed of to the best advan- 
tage for the benefit of the owners. 

The goods themselves so sent. 

In marine insurance. <A very usual 
word in policies of marine insurance, and 
everywhere used as synonymous, or nearly 
so, Wilh “perils.” It is often used by the 
writers to describe the enterprise or voyage 
as a “marine adventure” insured against. 
14 Fed. Rep. 233. 


ADVENTURE, BILI OF. In merean- 
tilelaw. A writing signed by a merchant, 
stating that the property in goods shipped in 
his name belongs to another, to the advent- 
ure or chance of which the person so named 
is to stand, with a covenant from the mer- 
chant to account to him for the produce. 


ADVERSARIA. (From Lat. adversa, 
things remarked or ready at hand.) Rough 
memoranda, common-place books. 


ADVERSARY. A litigant-opponent, the 
opposite party in a writ or action. 


ADVERSARY PROCHEDING. One 
having opposing parties; contested, as dis- 
tinguished from an ex parte application; 
one of which the party seeking relief las 


44 


ADVERTISEMENT 


given legal warning to the other party, and 
afforded the latter an opportunity to contest 
it. 

ADVERSE. Opposed; contrary; in re 
sistance or opposition to 4 claim, application, 
or proceeding. 


ADVERSE CLAIM. A claim set up by 
a stranger to goods upon which the sheriff 
has levied an execution or attachment. 


ADVERSE ENJOYMENT. The pos- 
Session or exercise of an easement, under a 
claim of right against the owner of the land 
out of which such easement is derived. 2 
Washb. Real Prop. 42. 


ADVERSE POSSESSION, The pos- 
session and enjoyment of real property, or of 
any estate lying in grant, continued for a cer- 
tain length of time, held adversely and in 
denial and opposition to the title of another 
claimant, or under circumstances which in- 
dicate an assertion or color. of right or title 
on the part of the person maintaining it, as 
against another person who is out of posses- 
sion. 


ADVERSE USER. An adverse user is 
such a use of the property as the owner him- 
self would make, asking no permission, and 
disregarding all other claims to it, so far as 
they conflict with this use. 63 Me. 434, 


ADVERSE VERDICT. Wherea party, 
appealing from an allowance of damages by 
commissioners, recovers a verdict in his favor, 
but for a less amount of damages than had 
been originally allowed, such verdiet is ad- 
verse to him, within the meaning of his un- 
dertaking to pay costs if the verdict should 
be adverse to him. 16 Gray, 256, 


ADVERSE WITNESS. A _ witness 
whose mind discloses a bias hostile to the 
party examining him; not a witness whose 
evidence, being honestly given, is adverse to 
the case of the examinant, Brown. 


ADVERSUS. Inthecivillaw. Against, 
{contra.} Adversus lonos mores, against 
good morals. Dig. 47, 10, 15. 


ADVERTISEMENT. Notice given in 
amanner designed to attract public atten- 
tion; information communicated to the pub- 
lic, or to an individual concerned, by means 
of handbills or the newspaper. 

A sign-board, erected at a person’s place of 
business, giving notice that lottery tickets 
are for sale there, is an “advertisement,” 
within the meaning of a statute prohibiting 
the advertising of lotteries. In such connec- 


ADVERTISEMENTS 


tion the meaning of the word is not confined 


ADVERTISEMENTS OF QUEEN 
ELIZABETH. Certain articles or ordi- 
nances drawn up by Archbishop Parker and 
some of the bishops in 1564, at the request of 
Queen Elizabeth, the object of which was to 
_ enforce decency and uniformity in the ritual 
ofthe church. The queen subsequently re- 
fused to give her official sanction to these ad- 
vertisements, and left them to be enforced by 
the bishops under their general powers. 
Phillim. Eee. Law, 910; 2 Prob. Div. 276; Id. 
354. 


ADVICE. View; opinion; the counsel 
given by lawyers to their clients; an opinion 
expressed as to wisdom of future conduct. 

The instruction usually given by one mer- 
chant or banker to another by letter, inform- 
ing him of shipments made to him, or of bills 
or drafts drawn on him, with particulars of 
date, or sight, the sum, and the payee. Bills 
presented for acceptance or payment are fre- 
quently dishonored for want of advice, 


ADVISARE, ADVISARI. To consult, 
deliberate, consider, advise; to be advised. 
Occurring in the phrase curia advisari vult, 
{usually abbreviated cur. adv. vult, or C. A. 
V.,) the court wishes to be advised, or to con- 
sider of the matter. 


=a 
- 


ADVISE. To give an opinion or counsel, 
or recommend a plan er course of action; also 
to give notice. 

This term is not synonymous with “direct” 
or “instruct.” Where a statute authorizes 
the trial court to advise the jury to acquit, 
the court has no power to instrucé the jury 
to acquit. ‘The court can only counsel, and 
the jury are not bound by the advice. 70 
Cal. 17, 11 Pac. Rep. 470. 


ADVISED. Prepared to give judgment, 
after examination and deliberation. “The 
court took time to be advised.” 1 Leon. 187. 


ADVISEMENT. Deliberation, consider- 
ation, consultation; the consultation of a 
court, after the argument of a cause by coun- 
sel, and before delivering their opinion. 


ADVISORY. Counselling, suggesting, 
or advising, but not imperative. A verdict 
on an issue out of chancery is advisory. 101 
U.S. 252. 


ADVOCARE,. Lat. To defend; to call 
to one’s aid; to vouch; to warrant. 


ADVOCASSIE. L. Fr. The office of 
an advocate; advocacy. Kelham. 


to notices printedin newspapers. 5 Pick. 42. 


45 ADVOCATI FISCI 


ADVOCATA. In old English law. A 
patroness; a woman who had the right of 
presenting toachurch. Spelman. 


ADVOCATE. One who assists, defends, 
or pleads for another; one who renders legal 
advice and aid and pleads the cause of an- 
other before a court. 

A person learned in the law, and duly ad- 
mitted to practice, who assists his client with 
advice, and pleads for him in open court. 
Holthouse. 

The College or Faculty of Advocates is a 
corporate body in Scotland, consisting of the 
members of the barin Edinburgh. <A large 
portion of its members are not active practi- 
tioners, however. 2 Bankt. Inst. 486. 

In the civil and ecclesiastical law. 
An officer of the court, learned in the law, 
who is engaged by a suitor to maintain or 
defend his cause. 


ADVOCATE GENERAL. The adviser 
of the crown in England on questions of 
nayal and military law. 


ADVOCATE, LORD. The _ principal 
crown lawyer in Scotland, and one of the 
great officers of state of Scotland. It is his 
duty to act as public prosecutor; but private 
individuals injured may prosecute upon ab- 
taining his concurrence. He is assisted by a 
sulicitor general and four junior counsel, 
termed “advocates-depute.” He has the 
power of appearing as public prosecutor in 
any court in Scotland, where any person can 
be tried for an offense, or in any action where 
the crown is interested. Wharton. 


ADVOCATE, QUEEN’S. A member of 
the College of Advocates, appuinted by let- 
ters patent, whose office is to advise and act 
as counsel for the crown in questions of civil, 
canon, and international law. His rank is 
next after the solicitor general. 


ADVOCATI. In Roman law. Patrons; 
pleaders; speakers. Anciently, any one who 
lent his aid toa friend, and wha was supposed 
to be able in any way to influence a judge, 
was called advocatus. 


ADVOCATI ECCLESIZA. A term used 
in the ecclesiastical law to denote the patrons 
of churches who presented to the living on 
an avoidance. This term was also applied to 
those who were retained to argue the cases 
of the church. 


ADVOCATI FISCI. In the civil law. 
Advocates of the fisc, or revenue; fiscal ad- 
vocates, (qui cawsam fisci egissent.) Cod. 2, 


ADVOCATIA 


9,1; Id.2,7,13. Answering, in some meas- 
ure, to the king’s counsel in Laglish law. 3 
Bil. Comm. 27. 


ADVOCATIA. In the civil law. The 


quality, function, privilege, or territorial ju-_ 


risdiction of an advocate. 


ADVOCATION. In Scotch law. A 
process by which an action may be carried 
from an inferior to a superior court before 
final judgment in the former. 


ADVOCATIONE DECIMARUM. A 
writ which lay for tithes, demanding the 
fourth part or upwards, that belonged to any 
church, 


ADVOCATOR. In old practice. One 
who called on or vouched another to warrant 
a title; a voucher. Advocatus; the person 
called on, or vouched; a vouchee. Spelinan; 
Townsh. Pl. 45. 


In Scotch practice. 
Broun, hk. 67. 


ADVOCATUS. Inthecivillaw. Anad- 
vocate; one who managed or assisted in man- 
aging another’s cause before a judicial tri- 
bunal. Called also “patronus.” Cod. 2, 7, 
14. But distinguished fromcausidieus. Id, 
2, 6, 6. 


ADVOCATUS DIABOLL. 
advocate; the advocate who argues against 
the canonization of a saint. 


An appellant. 1 


Advocatus est, ad quem pertinet jus 
edvocationis alicujus ecclesix, ut ad ec- 
clesiam, nomine proprio, non alieno, pos- 
sit presentare. A patron is he to whom 
appertains the right of presentation to a 
church, in such a manner that he may pre- 
sent to such achurch in his own name, and 
not in the name of another. Co. Litt. 119. 


ADVOWEE, or AVOWEE, 
son or patron who has a right to present toa 
benefice. Fleta, lib. 5, c. 14. 


ADVOWEE PARAMOUNT. 
ereign, or highest patron. 


ADVOWSON. In English ecclesiastical 
law. The right of presentation to a church 
or ecclesiastical benefice; the right of pre- 
senting a fit person to the bishop, to be by 
him admitted and instituted to a certain 
benefice within the diocese, which has be- 
come vacant. 2 Bl. Comm. 21; Co. Litt. 
1198, 120a. The person enjoying this right 
is called the “patron” (patrenus) of the 
church, and was formerly termed “advoca- 
tus,” the advocate or defender, or in En- 


The sov- 


46 


The devil’s | 


The per- | 


JEDIFICARE 


| glish, “advowee.” Id.; 1 Crabb, Real Prop. 

p- 129, § 117. 

| Advowsons are of the following several 
| kinds, viz.: 
Advowson epprndant. An advowson an- 
| nexed to a manor, and passing with it, ae 
inciilent or appendant to it, by a grant of 
the manor only. without adding any other 
words. 2 Bl. Comm. 22; Co. Litt. 120, 121; 
1 Crabb, Real Prop. p. 180, § 118. 

Advowsoen coliative. Where the bishop 
happens himself to be the patron, in which 
case (presentation being impossible, or un- 
necessary) he does by one act, which is. 
termed “collation,” or conferring the bene- 
fice, all that is usually done by the separate 
acts of presentation and institution. 2 Bl. 
Comm. 22, 28; 1 Crabb, Real Prop. p. 13], 
§ 119. 

Advowson donative. Where the patron 
has the right to put his clerk in possession 
by his mere gift, or deed of donation, with- 
out any presentation to the bishop, or in- 
stitution by him. 2 Bl. Comm. 23; 1 Crabb, 
Real Prop. p. 131, § 119. 

Advowson in gross. An advowson sep- 
arated from the manor, and annexed to the 
person. 2 Bl. Comm. 22; Co. Litt. 120; 1 
Crabb, Real Prop. p. 180, § 118; 3 Steph. 
Comm. 116, 

Advowson presentative, The usual kind 
of advowson, where the patron has the right 
of presentation to the bishop, or ordinary, 
and moreover to demand of him to institute 
his clerk, if he finds him canonieally quali- 
fied. 2 Bl. Comm. 22; 1 Crabb, Real Prop.. 
| pe dl, § 119. 


\ 

| ADVOWTRY, or ADVOUTRY. The 
offense, by an adulteress, of continuing to 
live with the man with whom she committed 
the adultery. Cowell; Termes de la Ley. 


ZEDES. Lat, In the civil law. A house, 
dwelling, place of habitation, whether in the 
city or country. Dig. 30,41,5. In the coun- 
try everything upon the surface of the soil 
passed under the term “@des." Du Cange; 
Calvin. 


JADIFICARE. Lat. In civil and old 
English law. To make or build a house; te 
erect a building. Dig. 45, 1, 75, 7. 


7idificare in tuo proprio solo non 
licet quod alteri noceat. 3 Inst.201, To 
build upon your own land what may injure 
another is not lawful. A proprietor of land 
has no right to erect an edifice on bis own 
ground, interfering with the due enjoyment 


ZEDIFICATUM 


of adjoining premises, as by overhanging 
them, or by throwing water from the roof 
and eaves upon them, or by obstructing an- 
cient lights and windows. Broom, Max. 369. 


#idificatum solo solo cedit. What is 
built upon land belongs to or goes with land. 
Broom, Max. 172; Co. Litt. 4a, 


Aidificia solo cedunt. 
long to [go with] the soil. 


g 12 


#DILE. In Romanlaw, An officer who 
aitended to the repairs of tha temples and 
other public buildings; the repairs and clean- 
liness of the streets; the care of the weights 
and measures; the providing for funerals and 
games; and regulating the prices of provis- 
ions. Ainsw. Lex.; Smith, Lex.; Du Cange. 


ADILITUM EDICTUM. Inthe Roman 
law. The Addilitian Edict; an edict provid- 
ing remedies for frauds in sales, the execu- 
tion of which belonged to the curule zdiles. 
Dig. 21,1. See Cod. 4, 58. 


JAFESN. In old English law. The re- 
muneration to the proprietor of a domain for 
the privilege of feeding swine under the oaks 
and beeches of his woods, 


#AGROTO. Lat. Being sick or indis- 
posed. A term used in some of the older re- 
ports, “Holt egroto.” 11 Mod. 179. 


AGYLDE. Uneompensated, unpaid for, 
unavenged. From the participle of exclu- 
sion, @, @, or ex, (Goth.,) and gild, payment, 
requital. Anc. Inst. Eng. 

ZL. A Norman French term signifying 


“prandfather.” It is also apelied “aieul” 
and “ayle.” Keibam. 


Buildings be- 
Fleta, lib. 3, ¢. 2, 


@quior est dispositio legis quam homi- 
nis, The disposition of the law is more 
equitable than that of man. §&8 Coke, 152. 


JEQUITAS. Inthe civil law. Eguity, 
as opposed to strictum or summum jus, (g. 


bv.) Otherwise called aquum, aquum bonum, |. 


equim et bonum, equum et justum. Cal- 


vin. 


Aigquites agit in personam. Equity 
acts upon the person. 4 Bouv. Inst, n. 3783. 


Aiquitas est correctio legis generaliter 
late, qua parte deficit. Equity is the cor- 
rection of that wherein the law, by reason of 
its generality, is deficient, Plowd. 375. 


Aiquitas est correctio queedam legi ad- 
hibita, quia ab e& abest aliquid propter 
generalem sine exceptione comprehen- 


47 


465 SUUM 


sionem, Equity is a certain correction ap- 
plied to law, becauseen account of its general 
comprehensiveness, without an exception, 
something is absent from it. Plowd. 467. 


“Equitas est perfecta queedam ratio 
qu jus seriptum interpretatur et emen- 
dat; nulla scriptura comprehensa, sed 
solum in vera ratione consistens. Equity 
is a certain perfect reason, which interprets 
and amends the written law, comprehended 
in no writing, but consisting in right reason 
alone. Co, Litt. 246. 


Aiquitas est quasi sequalitas. Equity 
is as it were equality; equity is a species of 
equality or equalization. Co. Litt, 24. 


Aiquitas ignorantis opitulatur, oscei- 
tantiz non item. Equity assists ignorance, 
but not carelessness. 


Aiquitas non facit jus, sed juri anxil- 
jiatur. Equity does not make law, but assists 
law. Lofft, 379. 


Aiquitas nunquam contravenit leges. 
Equity never counteracts the laws. 


Aiquitas sequitur legem. 
lows the law. Gilb. 186. 


Aiquitas supervacua odit. Equity ab- 
hors superfluous things. Lofft, 282, 


Equitas uxoribis, liberis, creditoribus 
maxime favet. Equity favors wives and 
children, creditors most of all. 


Equity fol- 


AHiquum et bonum estlexlegum. What 
is equitable and good is the law of laws, 
Hob, 224. 


JERA, or BRA. A fixed point of chron- 
ological time, whence any number of years 
is counted; thus, the Christian era began at 
the birth of Christ, and the Mohammedan era 
at the flight of Mobammed from Mecca to 
Medina. The derivation of the word has 
been much contested, Wharton. 


AZRARIUM. Lat. In the Roman law. 
Tho treasury, (fiseus.) Calvin. 


7iS. Lat. In the Roman law. Money, 
(literally, brass;) metallic money in general, 
including gold. Dig. 9, 2, 2, pr.; Id. 9, 2, 
O25; ddsaU) 16, wb59. 


#28 ALIENUM. A civil law term sig- 
nifying a debt; the property of another; bor- 
rowed money, a5 distinguished from as suwm, 
one’s Own money. 


438 SUUM. One’a own money. In the 
Roman law. Debt; s debt; that which oth- 


ZESNECIA 


ers owe tous, (quod alii nobis debent.) Dig. 
50, 16, 213. 


JESNECIA. Jn old English law. Es- 
necy; the right or privilege of the eldest born. 
Spelman; Glany. lib. 7, ¢. 3; Fleta, lib. 2, ¢. 
66, §§ 5, 6. 


STIMATIO CAPITIS. InSaxon law. 
The estimation or valuation of the head; the 
price or value of a man, By the laws of 
Athelstan, the life of every man, not except- 
ing that of the king himself, was estimated 
at a certain price, which was called the ere, 
or estimatio capitis. Crabb, Eng. Law, 
o, 4. 


Zistimatio precteriti delicti ex post- 
remo facto nunquam crescit. The weight 
of a past offense is never increased by a sub- 
sequent fact. Bacon. 


JBTAS INFANTIM PROXIMA. In 
the civil law. The age next to infancy; the 
first half of the period of childhood, (puert- 
tia,) extending from seven years to ten and 
ahalf. Inst. 3, 20, 9; 4 Bl. Comm. 22. 


#TAS LEGITIMA. In the civil law. 
Lawful age; the age of twenty-five. Dig. 3, 
5, 27, pr.; Id. 26, 2, 32, 2; Id. 27, 7, 1, pr. 


ATAS PERFECTA. In the civil law, 
Complete age; full age; the age of twenty- 
five, Dig. 4, 4, 32; Id. 22, 3, 25, 1. 


ASTAS PRIMA. In thecivillaw. The 
first age; infancy, (infantia.) Cod. 6, 61, 
8, 3. 


AXTAS PUBERTATI PROXIMA. In 
the civillaw. The age next to puberty; the 
last half of the period of childhood, (puerétia, ) 
extending from ten years and a half to four- 
teen. Inst. 3, 20, 9; 4 Bl. Comm. 22. 


ATATE PROBANDA. A writ which 
inquired whether the king’s tenant holding 
in chief by chivalry was of full age to receive 
his lands. It was directed to the escheater 
of the county. Now disused. 


ASTHELING. In Saxon law. 
generally a prince of the blood. 


A noble; 


AFFAIRS. A person's concerns in trade 
or property; business. 


AFFECT. This word is often used in the 
sense of acting injuriously upon persons and 
things. 93 U. 8. 84. 


Affectio tua nomen imponit operi tuo. 
Your disposition (or intention) gives name 
(or character) to your work or act. Bract. 
fol. 26, 1018. 


48 


mn 


AFFIDATIO DOMINORUM 


AFFECTION. The making over, pawn- 
ing, or mortgaging a thing to assure the pay- 
ment of asum of money, or the discharge of 
soine other duty or service. Crabb, Technol, 
Dict. 


AFFECTUS. Disposition; intention, im- 
pulse or affection of the mind. One of the 
causes for a challenge of a juror is propter 
affectum, on account of a suspicion of bias or 
favor. 3B]. Comm. 363; Co. Litt. 156. 


Affeetus punitur licet non sequatur 
effectus. The intention is punished although 
the intended result does notfollow. 9 Coke, 
55. 


AFFEER. To assess, liquidate, appraise, 
fix in amount. 

To affeer an amercement. To establish 
the amount which one amerced in a court-leet 
should pay. 

To affeer an account. 
oath in the exchequer. 
Spelman. 


AFFEERORS. Persons who, in court- 
leets, upon oath, settle and moderate the fines 
and amercements imposed on those who have 
committed offenses arbitrarily punishable, or 
that have no express penalty appointed by 
statute. They are also appointed to moderate 
fines, etc., in courts-baron. Cowell. 


AFFERMER. L. Fr. To let to farm. 
Also to make sure, to establish or confirm. 
Kelham. 


AFFIANCE. A plighting of troth be 
tween man and woman. Litt. § 39. An 
agreement by which a man and woman prom- 
ise each other that they will marry togeth- 
er. Poth. Traité du Mar. nm. 24, 


AFFIANT. The person who makes and 
subscribes an affidavit. The word is used, 
in this sense, interchangeably with “depo- 
nent.” But the latter term should be re- 
served as the designation of oue who makes 
a deposition. 


AFFIDARE. To swear faith to; to 
pledge one’s faith or do fealty by making 
oath. Cowell. 


AFFIDARI. To be mustered and en- 
rolled for soldiers upon an oath of fidelity. 


AFFIDATIO. Aswearing of the oath of 
fidelity or of fealty to one’s lord, under whose 
protection the quasi-vassal haa voluntarily 
come. Brown. 


AFFIDATIO DOMINORUM. Anoath 
taken by the lords in parliament. 


To confirm it on 
Cowell; Blount; 


AFFIDATUS 


FIDATUS. One who is aot a vassal, 
b who for the sake of protection haa con- 

d himself with one more poser 
Iman; 2 Bl. Comm. 46. 


_ AFFIDAVIT. A written or printed dee- 
aration or statement of facts, made volun- 
ily, and confirmed by the oath or affirm:- 
n of the party making it, taken before an 
officer having authority to administer such 
oath. 
_ An affidavit is a written declaration under 
oath, made without notice to the adverse 
party. Code Civil Proc, Cal. § 2003; Code 
Civil Proc. Dak. § 464. 
An afiduvit is an oath in writing, sworn 
before and attested by him who hath author- 
ity toadminister the sane. 1 Mich. N. P. 
139, 
An affidavit is always taken ev parte, and 
in this respect it is distinguished from a dep- 
‘osition, the matter of which is elicited by 
questions, and which affords an opportunity 
for cross-examination. 


AFFIDAVIT OF DEFENSE. An af- 
idavit stating that the defendant has a good 
defense to the plaintiff's action on the merits 
of the cxse. Also called an affidavit of mer- 
«ts 
' 
 APFIDAVIT OF SERVICH, An af- 
fidavit intended to certify the service of a 
writ, notice, or other document. 


AFFIDAVIT TO HOLD TO BAIL. 
An affidavit made to procure the arrest of the 
defendant in a civil action. 


AFFILARE. JL. Lat. To file or affile. 
‘Affiietur, let it be filed. 8 Coke, 160. De re- 
tordo affilatum, affiled of record. 2 Ld. 
-Raym. 1476. 


_APPILE. A term employed in old prac- 
e, Signifying to put on file. 2 Maule &S. 
202, In modern usage it is contracted to 
file. 

AFFILIATION. The fixing any one 
with the paternity of a bastard child, and 
the obligation to maintain it. 

In French law. A species of adoption 
Which exists by custom in some paris of 
Frauce. The person afiiliated succeeded 
equally with other heirs to the property ac- 
qhired by the deceased to whom he had been 
atiiliated, but net te that which he inherited. 
Bouvier. 

In ecclesiasticallaw. A condition which 
prevented the superior from removing the 

AM.DICT.LAW—4 


4] 
at 


49 AFFIRM 


person affiliated to another convent. Guyot, 
Repert. 


AFPFINAGE, Arefining of metals. 
Blount. 
AFFINES. In the civil law. Connec- 


tions by marriage, whether of the persons or 
their relatives. Calvin. 

Neighbors, who own or occupy adjoining 
lands. Dig. 10, 1, 12. 


Affinis mei affinis non est mihi affinis. 
One who is related by marriage to a person 
Telated to me by marriage, hag no ae to 
Ie. Shelf. Mar. & Div. 174. 


AFFINITAS. In the civil law. Affin- 
ity; relationship by marriage. Inst. 1, 10, 6. 


AFFINITAS AFFINITATIS, Re- 
mote relationship by marriage. That con- 
nection between parties arising from mar- 
riage which is neither consanguinity nor 
aflinity. 


AFFINITY. Relationship by marriage 
between the husband and the blood relations 
of the wife, and between the wife and the 
blood relations of the husband, 1 Bl. Comm. 
434, Affinity is distinguished into three 
kinds: (1) Dérect, or that subsisting he- 
tween the husband and his wife's relations 
by blood, or between the wife and the hus- 
band’s relations by blood; (2) secondary, or 
that which subsists between the husband and 
his wife’s relations by marriage; (3) cod/aier- 
al, or that which subsists between the hus- 
band and the relations of his wife's relations. 
Wharton. 

The connection which arises by marriage 
between each person of the married pair and 
the kindred of the other. Mackeld, Rom. 
Law, § 147. A husband is related by af- 
finity to all the consanguinet of his wife, 
and vice versa, the wife to the husband's 
consanguine’; for the husband and wife be- 
ing considered one flesh, those who are re- 
lated to the one by blood are related to the 
other by affinity. Gib. Cod.412; 1 Bl. Comm. 
435. 

In a larger sense, consanguinity or kin- 
dred. Co. Litt, 157a. 

Affinity means the tie which arises from 
the marriage between the husband and the 
blood relations of the wife, and between the 
wife and the biood relations of the husband. 
45 N. Y. Super. Ct. 84. 


APFIRM. To ratify, make firm, con- 
firm, establish, reassert. 


AFFIRM 


To ratify or confirm a former law or judg- 
ment. Cowell. 


In the practice of appellate courts, to affirm | 


a judgment, decree, or order, is to declare 
that it is valid and right, and must stand as 
rendered below; to ratify and reassert it; to 
concur in its correctness and confirm its effi- 
cacy. 

In pleading. To allege or aver a matter 
of fact; to state it affirmatively; the opposite 
of deny or traverse. 

In practice. To make affirmation: to 
make a solemn and formal declaration or as- 
severation that an aflidavit is true, that the 
witness will tell the truth, ete., this being 
substituted for anu oath in certain eases. 
Also, to give testimony on affirmation. 

In the law of contracts. A party is 
said to affirm a contract, the same being 
voidable at his election, when he ratifies and 
accepts it, waives his right to annul it, and 
proceeds under it as if it had been valid 
originally. 


AFFIRMANCE. In praetice. Thecon- 
firming, or ratifying a former law, or judg- 
ment. Cowell; Blount. 

The confirmation and ratification by an ap- 
pellate court of a judgment, order, or decree 
of a tower court brought before it for review. 
See AFFIRM. 

A dismissal of an appeal for want of pros- 
ecution is not an “aflirmance” of the judg- 
ment, J4N. Y. 60. 

The ratification or confirmation of a void- 
able contract or act by the party whe is to be 
bound thereby. 

The term is in accuracy to be distinguished from 
ratification, which is a recognition of the validity 
or binding force as against the party ratifying, of 
some act performed by auother person; and from 
confirmation, which would seem to apply more 
properly to cases where a doubtful authority has 
been exercised by another in behalf of the person 


ratifying; but these distinctions are not generally 
observed with much care. Bouvier. 


AFFIRMANCE DAY GENERAL. 
In the Engtish court:of exchequer, is a day 
appointed by the judges of the common pleas, 
and barons of the exchequer, to be held a 
few days after the beginning of every term 
for the general affirmance or reversal of judg- 
ments. 2 Tidd, Pr. 1091. 


AFFIRMANT. A person who testifies 
on affirmation, or who affirms instead of tak- 
ing an oath. See AFFIRMATION. Used in 
affidavits and depositions which are efirmed, 
instead of sworn te in place of the word 
“deponent.” 


50 AFFORATUS 


Affirmanti, non neganti incumbit pro- 
batio. The [burden of] proof lies upon him 
who affirms, not upon one whodenies. Steph, 
Pl. 84. 


Affirmantis est probare. He who af- 
firms must prove. 9 Cush. 535. 


AFFIRMATION. In practice. A sol- 
emn and formal declaration or asseveration 
that an affidavit is true, that the witness will 
tell the truth, ete., this being substituted for 
an oath in certain cases. 

A solemn religious asseveration in the nat- 
ure of an oath. 1 Greenl. Ev. § 371. 


AFFIRMATIVE. That which declares 
positively; that which avers a factto be true; 
that which establishes; the opposite of nega- 
tive. 

The party who, upon the allegations of pleadings 
joining issue, is under the obligation of making 
proof, in the first instance, of matters alleged, is 
said to hold the affirmative, or, in other words, to 
sustain the burden of proof. Abbott. 


AFFIRMATIVE PREGNANT. In 
pleading. An altirmative allegation imply- 
ing some negative in favor of the adverse: 
party. 


AFFIRMATIVE STATUTE. In legis- 
lation. A statute couched in atlirmative or 
mandatory terms; one which directs the do- 
ing of an act, or declares what shall be done; 
as a negative statute is one which prohibits 
a thing from being done, or declares what 
shall not be done. Blackstone describes af: 
firmative acts of parliament as those “ where- 
{n justice is directed to be done according 
tothe law of theland.” 1Bl. Comm. 142. 


AFFIRMATIVE WARRANTY. In 
the law of insurance, warranties may be 
either affirmative or promissory. Aflirma- 
tive warranties may be either express or im- 
plied, but they usually consist of positive 
representations in the policy of the existence 
of some fact or state of things at the time, or 
previous to the time, of the making of the 
policy; and they are, in general, conditions 
precedent, which, if untrue, whether mate 
rial to the risk or not, the policy does not at- 
tach, as it is not the contract of the insurer. 
4 Chiff. 281. . 


AFFIXUS. In the civil law. 
fixed, or fastened to. 


Affixed, 


AFFORARE. To seta price or value on 
athing. Blount. 


AFFORATUS. Appraised or valned, as 
things vendiblein a market. Blount. 


AFFORCE Sl 


AFFORCE. To add to; to Increase; to 
strengthen; to add force to. 


AFFORCE THE ASSISE. In old En- 
glish practice. A method of securing a ver- 
dict, where the jury disagreed, by adding 
other jurors to the panel until twelve could 
be found who were unanimous in their opin- 
jon. Bract. fol. 1856, 292¢; Fleta, lib. 4, ¢. 
9, § 2; 2 Reeve, Hist. Eng. Law, 267. 


AFFORCIAMENTUM. In old English 
law. A fortress or stronghold, or other forti- 
fication, Cowell. 


The calling of a court upon a solemn or ex- 
traordinary occasion. Id. 


AFFOREST. To convert land into a 
forest in the legal sense of the word. 


AFFOUAGE. In French law. The 
right of the inhabitants of a commune or 
section of a commune to take from the forest 
the fire-wood which is necessary for their 
use, Duverger. 


AFFRANCHIR. L. Fr. 
Kelhain. 


To set free. 


AFFRANCHISE. To liberate; to make 
free. 


AFFRAY. Incriminallaw. The fight- 
ing of two or more persons in some public 
place to the terror of the people. 

Ii differs from a riot in not being premeditated; 
for if any persons meet together upon any lawful 
or innocent occasion, and happen on a sudden to 
engage in fighting, they are not guilty of a riot, 
butan affray only; andin that case none are guilty 
except those actually engaged init. Hawk. P. C. 
bk. 1, c. 63, § 8; 4 BL Comm. 146; 1 Russ. Crimes, 
B71. 

If two or more persons voluntarily or by 
agreement engage in any fight, or use any 
blows or violence towards each other in an 
angry or quarrelsome manner, in any public 
place to the disturbance of others, they are 
guilty of an affray, and shall be punished by 
imprisonment in the county jail not exceed- 
ing thirty days, or by fine not exceeding one 
hundred dollars. Rev. Code Iowa 1880, 
§ 4065. 


APFRECTAMENTUM. Aiffreightment; 
a contract for the hire of a vessel. From 
the Fr, fret, which, according to Cowell, 
meant tons or tonnage. 


AFFREIGHTMENT. A contract of af- 
freightment is a contract with a abip-owner 
to hire his ship, or part of it, for the carriage 
of goods. Such a contract generally takes | 


AGAINST 


the form either of a charter-party or of a bil? 
of lading. Maude & P. Mer. Shipp. 227; 
Smith, Mere. Law. 295. 

In French law, freighting and affreighting 
are distinguished. The owner of a ship 
freights it, (le frete,;) he is called the freight- 
er, (freteur,;) he is the letter or lessar, (loca- 
teur, focator.) ‘The merchant affreights (a/- 
Jrete) the ship, and is called the affreighter, 
(affreteur;) he is the hirer, (locataire, con- 
ductor.) Emerig. Tr. des Ass. c. 11, § 3. 


AFFRETEMENT. Fr. In French law, 
The hiring of a vessel; affreightment. Called 
also nolissement. Ord. Mar. liv. 1, tit. 2, 
art. 2; Id. liv. 3, tit. 1, art. 1. 


AFFRI. In old English law. Plow 
cattle, bullocks or plow horses. <Affri, o1 
afri caruce ; beastsofthe plow. Spelman. 


AFORESAID. Before, or already said, 
mentioned, or recited; premised. Plowd.67. 
Foresaid is used in Scotch law. 

Although the words “preceding” and 
“aforesaid” generally mean next before, and 
“following” means next after, yet a different 
signification will be given to them if required 
by the context and the facts of the case. ¥5 
Ga. 180. 


AFORETHOUGHT. In criminal law. 
Deliberate; planned; premeditated; prepensse. 


AFTER-ACQUIRED. Acquired aftera 
particular date or event. ‘Thus, a judgment 
isa lien on after-acquired realty, 7. e., land 
acquired by the debtor after entry of the 
judgment. 


AFTER-DISCOVERED. Discovered or 
made known after a particular date or event. 


AFTERMATH. A second crop of grass 
mown in the same seuson; also the right to 
take such second crop. See 1 Chit. Gen, Pr. 


181. 
AFTERNOON. This word has two 
senses. It may mean the whole time from 


noon to midnight; orit may mean the earlier - 


part of that time, as dislinguished from the 
evening. When used ina statute, its mean- 
ing must be determined by the context and 
the circumstances of the subject-matter. 2 
El, & Bl. 451. 


AGAINST THE FORM OF THE 
STATUTE. When the act complained of is 
prohibited by a statute, these technical words 
tmoust be used in an indictment underit. The 
Latin phrase is contra formam statuti. 


M 


AGAINST 


AGAINST THE PHACE. A technical 
plrase used in alleging a breach of the peace. 
See Conrra Paorm. 


AGAINST THE WILL. Technical 
words which must be used in framing an in- 
dictment for robbery from the person. 1 
Chit. Crim. Law, 244. 


AGALMA, An impression or image of 
anything onaseal, Cowell. 


AGARD. L. Fr. Anaward. Nul fait 
agard; no award made. 


AGARDER. L. Fr. To award, adjudge, 
or determine; to sentence, or condemn. 


AGH. Signiiies those periods in the lives 
of persons of both sexes which enable them 
to do certain acts which, before they had ar- 
rived at those periods, they were prohibited 
from doing. 

The length of time during whicha person 
has lived or a thing has existed. 

In the old books, “age” is commonly used 
to signify “full age,” that is, the age of 
twenty-one years. Litt. § 259. 


AGE, Awe, Aive. L. Fr. Water. 
ham, 


AGE PRAYER. A suggestion of non- 
age, made by an infant party to a real ac- 
tion, with a prayer that the proceedings may 
be deferred until his full age, It is now 
abolished, St. 11 Geo. 1V.; 1 Wm. 1V.¢. 37, 
§ 10; 1 Lil. Reg. 54; 3 Bl. Comm. 300. 


AGENCY, The contraet of agency may 
be defined to be a contract by which one of 
the contracting parties conlides the manage- 
ment of some affair, to be transacted on his 
account, to the other party, who undertakes 
to de the business and render an account of 
it. 1 Liverm. Prin. & Ag. 2. 

A contract by which one person, with 
greater or less discretionary power, under- 
takes to represent another inecrtain business 
relations. Whart. Ag. 1. 

A relation between two or more persons, 


Kel- 


by which one party, usually called the agent: 


or attorney, is authorized to do certain acts 
for, or in relation to the rights or property of 
the other, who is denominated the principal, 
constituent, or employer. Louvier, quoting 
Prof. Joel Parker, MS. Lect. 1851. 


AGENCY, DEED OF. Arevocable and 
voluntary trustfor payment of debts. Whar- 
ton. 


AGENFRIDA. Sax. The true master 
er owner of a thing. Spelman. 


AGENT 


AGENHINA. In Saxon law. A guest 
atan inn, who, having stayed there for th 
nights, was then accounted one of the family. 
Cowell. 


AGENS. Lat. An agent, a conductor, 
or manager of affairs. Distinguished from 
Jactor,a workman. A plaintiff. Fleta, lib. 
4, ec. 15, § 8. 


AGENT. One who undertakes to trans 
act some business, or to manage some affair, 
for another, by the authority and on account 
of the latter, and to render an account of it. 
1 Liverm. Prin. & Ag. 67; 2 Bouv. Inst. 3. 

An agent is one who represents another 
called the “principal,” in dealings with third 
persons. Such representation is called agen- 
ey. Civil Code Dak. § 1337. 

The terms “agent” and “atiorney” are oft 
en used synonymously, Thus, a letier o 
power of attorney is constaitly spoken of a 
the formal instrument by which an agency 
is created. Paley, Ag. (Dunl. Ed.) 1, n. 

Classification. Agents are eibler general 
or special. A general agent is one employed 
in his capacity as a professional man or 
Inaster of an art or trade, or one to whom the 
principal confides his whole business or all 
transactions or functions of a designated 
class. A special agent is one employed to con- 
duet a particular transaction or authorized lo 
perform a specified act. 

Agents employed for the sale of goods or 
merchandise are called “mercantile agents,” 
and are of two principal classes,—brokers 
and factors, (qg. v.,) a factor is sometimes 
called a “commission agent,” or “commission 
merehant.” Russ. Mere. Ag. 1. 


Synonyms. The term “agent” is to be 
distinguished from its synonyms “servant,” 
“representative,” and “trustee.” A sery- 
ant ucts in behalf of his master and under the 
latter's direction and authority, but is re 
garded as a mere instrument, and not as tha 
substitute or proxy of the master. <A repre- 
sentative (such as an executor or an assignee 
in bankruptcy} owes his power and authority 
tothe law, which puts him in the place of the 
person represented, although the flatter may 
have designated or chosen the representative, 
A trustee acts in the interest and forithe bene- 
fit of one person, but by an authority derived 
from another person. 

In international law. A diplomatic 
agent is a person employed by a sovereign to 
Inanuge his private affairs, or those of his 
subjects in his name, at the court of a foreign 
government. Wolff, Inst. Nat. § 1237. 


AGENT 


In the practice of the house of lords 
and privy council. In appeals, solicitors 
and other persons admitted to practise in those 
courts in a similar capacity to that of solicit- 
ors in ordinary courts, are technically called 
“agents.” Macph. Priv. Coun. 65. 


AGENT AND PATIENT. A phrase 
Indicating the state of a person who is re- 
quired to do a thing, and is at the same time 
tle person to whom it is done, 


Agentes et consentientes pari poena 
plectentur. Acting and consenting parties 
are liable to the same punishment. 5 Coke, 


$0. 


AGER. Lat. In the civil law. A 
field; land generally. <A portion of land in- 
tlosed by definite boundaries. 


In old English law. An acre. Spel- 
man, 
AGGER. Lat. Inthecivillaw. Adam, 


bank or mound. Cod. 9, 38; Townsh. Pl. 48. 


AGGRAVATED ASSAULT. An as- 
siult with circumstances of aggravation, or 
of a heinous character, or with intent to com- 
mit another crime. See AssavuLr. 

Defined in Pennsylvania as follows: “If 
any person shall unlawfully and maliciously 
{ntliet upon another person, either with or 
without any weapon or instrument, any 
grievous bodily harm, or unlawfully cut, 
stab, or wound any other person, he shall be 
guilty of a misdemeanor,” ete. Brightly, 
Purd. Dig. p. 484, § 167. 


AGGRAVATION. Any circumstance 
attending the commission of a crime or tort 
which increases its guilf or enormity or adds 
to its injurious consequences, but which is 
above and beyond the essential constituents 
of the crime or tort itself. 

Matter of aggravation, correctly under- 
“stood, does not consist in acts of the same 
tind and ceseription as those constituting the 
pist of the action, but in something done by 
the defendant, on the occasion of committing 
the trespass, which is, to some extent, of a 
different legal character from the principal 
act complained of. 19 Vt. 107. 

In pleading. The introduction of matter 
into the declaration which tends to increase 
the amount of damages, but does not affect 
the right of action itself. Steph. Pl. 257; 12 
Mod. 597. 


AGGREGATE. Composed of several; 
consisting of many persons united together. 
1 BL Comm. 469. 


53 


AGISTATIO 


AGGREGATIO MENTIUM. The 
meeting of minds. The moment when a 
contract is complete. A supposed deriva- 
tion of the word “agreement.” 


AGGRESSOR. The party who first of- 
fers violence or offense. He who begins a 
quarrel or dispute, either by threatening or 
striking another, 


AGGRIEVED. Having suffered loss or 
injury; damnified; injured. 


AGGRIEVED PARTY. Under statutes 
granting the right of appeal to the party 
aggrieved by an order or judgment, the party 
aggrieved is one whose pecuniary interest is 
directly affected by the adjudication; one 
whose right of property may be established 
or divested thereby. 6 Mete, (Mass.) 197; 16 
Pick. 264; 6 N. H. 116; 25 N. J. Eq. 505; 
64 N. C. 110. Or one against whom error 
has been committed. 67 Mo. 99. See, also, 
27 Wis. 670; 2 Paine, 315; 17 Cal. 250; 3 
Allen, 556. 


AGILD. In Saxon law. Free from pen- 
alty, not subject to the payment of gild, or 
weregild; that is, the customary fine or pe- 
cuniary compensation for an offense. Spel- 
man; Cowell. 


AGILER. 
or informer. 


AGILLARIUS. L. Lat. In old En- 
glish law. A hayward, herdward, or keeper 
of the herd of cattle in a common field. 
Cowell. 


In Saxon law. An observer 


AGIO. In commercial law. <A term 
used to express the difference in point of 
value between metallic and paper money, or 
between one sort of metallic money and an- 
other. MeCul. Dict. 


AGIOTAGE. A speculation on the rise 
and fall of the public debt of states, or the 
public funds. ‘The speculator is called “ag- 
toteur.” 


AGIST. In ancient law. To take in 
and feed the cattle of strangers in the king’s 
forest, and to collect the money due for the 
same to the king’s use. Spelman; Cowell. 

In modernlaw. To take in cattle to feed, 
or pasture, at a certain rate of compensa- 
tion. Jacob; 13 East, 159. 


AGISTATIO ANIMALIUM IN FOR- 
ESTA. The drift or numbering of cattle 
in the forest. 


M 


AGISTERS 
AGISTERS or GIST TAKERS. Offi- 
cers appointed to look after cattle, etc. See 


Williams, Common, 2382. 


AGISTMENT. Thetaking in of another 
person’s cattle to be fed, or to pasture, upon 
one’s own land, in consideration of an agreed 
price to be paid by the owner. Also the 
protit or recompense for such pasturing of 
cattle. 

There is also agistmentof sea-banks, where 
lands are charged with a tribute to keep out 
the sea; and terre agistate are lands whose 
owners must keep up the sea-banks. Holt- 
house, 


AGISTOR. One who takes in horses or 
other animals to pasture at certain rates. 
Story, Bailm. § 443. 


AGNATES. In the law of descents. Re- 
lations by the father. This word is used 
in the Scotch law, and by some writers as an 
English word, corresponding with the Latin 
agnatt, (q.v.) Ersk. Inst, b. 1, tit. 7, § 4. 


AGNATI. In Romun law. The term 


included “all the cognates who trace their | 


connection exclusively through males. A 
table of cognates is formed by taking each 
lineal ancestor in turn and including all his 


54 AGREE 
AGNATIO, In thecivillaw. Relatlon 
ship on the father’s side; agnation. <Agnati 


descendants of both sexes in the tabular view, ; 


If, then, in tracing the various branches of 
such a genealogical table or tree, we stop 
whenever we come to the name of a female, 
and pursue that particular branch or ramifi- 
cation no further, all who remain after the 
descendants of women have been excluded 
are agnates, and their connection together is 
agnatic relationship.” Maine, Anc. Law, 
142. 

All persons are agnatically connected to- 
gether who are under the same patria po- 
testas, or who have been under it, or who 
might have been under it if their lineal an- 
eestor had lived long enough to exercise his 
empire. Maine, Anc. Law, 144. 

The agnate family consisted of all persons, 
living at the same time, who would have 
been subject to the patria potestas of a 
common ancestor, if his life had been con- 
tinued to their time. Tadl. Rom. Law, 131, 

Between agnati and cognatl there is this differ- 
ence: that, under the name of agnati, cognati are 
included, but not @ converso; for instance, a fa- 
ther’s brother, that is, a paternal uncle, is both ag- 
natus and cognatus, but a mother’s brother, that 
fs, a maternal uncle, is a cogratus bat not agna- 
tus. (Dig. 38, 7,5, pr.) Burrill. 

AGNATIC. [From aegnatt, 9g. 0.] De 
rived from or through males. 2 BL Comm. 
2d. 


a petreest. Inat, 3, 5, 4; Id. 3, 6, 6. 


AGNATION. Kinship by the father’s 
side. See AGNATES; AGNATI. 


AGNOMEN. Lat. An additional nams 
or title; a nickname, A nameor title whicha 
man gets by some action or peculiarity; tha 
last of the four names sometimes given a 
Roman. Thus, Scipio Africanus, (the Afri- 
can,) from his African victories. Ainge 
worth; Calvin. 


AGNOMINATION. <A surname; an 
additional name or title; agnomen. 


AGNUS DEI. Lat. Lamb of God. A 
piece of white wax, in a flat, oval form, like 
a small cake, stamped with the figure of a 
lamb, and consecrated by the pope. Cowell, 


AGRARIAN. Relating to land, or toa 
division or distribution of land; a3 an agra- 
rian law. 


AGRARIAN LAWS. In Roman law. 
Laws for the distribution among the people, 
by public authority, of the lands constituting 
the public domain, usually territory con- 
quered from an enemy. 

In common parlance the term is frequently 
applied to laws which have for their ob 
ject the more equal division or distributior 
of landed property; laws for subdividing 
large properties and increasing the number 
of landholders. 


AGRARIUM. A tax upon or tribute 
payable out of land. 


AGREAMENTUM.,. In old English law, 
Agreement; an agreement. Spelman. 


AGREE. To concur; to comeinto harmo- 
ny; to give mutual assent; fo unite in men- 
tal action; toexchangs promises; to makean 
ayreement. 

‘To assent toa thing, or undertake to do It; 
to promise. 1 Denio, 226, 228, 229. This is 
a loose and incorrect sense of the term. 5 
Kast, 11. 

To concur or acquiesce in; to approve or 
adopt. Agreed, agreed to, are frequently 
used in the books, (like accord,) to show the 
concurrence or harmony of cases. Agreed 
per curiam is a common expression. 

To harmonize or reconcile. “You will 
agree your books,” 4% Coke, 67. 


AGRE. In French law. A solicitor 
practising svulely in the tribunals ef com- 
merce. 


AGREEANUCE 


AGREEANCE. In Seotchlaw. <Agree- 
ment; an agreement or contract. 


AGREED. Settled or established by 
agreement. This word in a.deed creates a 
covenant. 

This word is a technical term, and it is 
syninymous with “contracted.” Meigs, 433. 
It means, ex vi termini, that it is the agree- 
ment of both parties, whether both sign it or 
not, each and both consenting to it. 26 
Barb, 298. 


AGREED STATEMENT OF FACTS. 
A statement of facts, agreed on by the par- 
ties as true and correct, to be submilted toa 
court for a ruling on the law of tho case. 


AGREEMENT. A concord of under- 
standing and intention, between two or more 
parties, with respect to the effect upon their 
relative rights and duties, of certain past or 
fulure facts or performances. The act of 
two or more persons, who unite in expressing 
amntualand common purpose, with the view 
of altering their rights and obligations. 

A coming together of parties in opinion or 
determination; the union of two or more 
minds in a thing done or to be done; @ mut- 
ual assent todoa thing. Com, Dig. “ Agree- 
ment,” A 1. 

The consent of two or more persons con- 
turring, the one in parting with, the other 
in receiving, some property, right, or benefit. 
Bac. Abr. 

A promise, or undertaking. This is a loose 
and incorrect sense of the word. 5 East, 11. 
See 8 Brod. & B. 14; 3 N. Y. 335. 

The writing or instrument which is evi- 
dence of an wyreement. 

Agreements are of the following several 
descriptions, viz.: 

Conditional agreements, the operation and 
effect of which depend upon the existence of 
a supposed state of facts, or the performance 
of a condition, or the happening of a contin- 
gency. 

Lxecuted agreements, which have reference 
to past events, or which are at once closed 
and where nothing further remains to be 
done by the parties. 

Hxecutory agreements are sich as are to be 
performed inthefuture. They are commonly 
preliminary to other more formal or important 
contracts or deeds, and are usually evidenced 
hy memoranda, parol promises, etc. 

Hapress agreements are those in which the 
terms and stipulations are specifically de- 
clareé and avowed by the parties at the time 
of making the agreement. 


55 AGRICULTURE 


Implied agreements are those which the 
law infers the parties to have made, although 
the terms were not openly expressed. 

Synonyms distinguished. The term 
“agreement” is often used a8 synonymous 
with “contract.” Properly speaking, how- 
ever, itis a wider term than “contract” (An- 
son, Cont.4.) An agreement might not be a 
contract, because not fullilling some require- 
ment of the law of the place in which it is 
made. So, where a contract embodies a se- 
ries of mutual stipulations or constituent 
clauses, each of these clauses might be de- 
nominated an “agreement.” 

“Agreement” is seldom applied to special- 
ties; “contract” is generally contined to sim- 
ple contracts; and “promise” refers to the 
engagement of a party without reference to 
the reasons or considerations for it, or the 
duties of other parties. Pars. Cont. 6. 

“ Agreement” is morecomprehensive than 
“promise;” signifies a mutual contract, on 
consideration, between two or more parties. 
A statute (of frauds) which requires the 
agreement to be in writing includes the con- 
sideration, 5 East, 10. 

“Agreement” is not synonymous with 
“promise” or “undertaking,” but, in its more 
proper and correct sense, signifies a mutual 
contract, on consideration, between two or 
more parties, and implies a consideration. 
24 Wend. 285. 


AGREEMENT FOR INSURANCE. 
A brief agreement entered into between 
the insurer and insured, preliminary to the 
filling up and delivery of a policy. 


AGREER. Fr. 
To rig or equip a vessel, 
tit. 2, art. 1. 


In French marine law. 
Ord. Mar. liv. 1, 


AGRE. Fr. In French marine law. 
The rigging or tackle of a vessel. Ord. Mar. 
liv. 1, tit. 2, art. 1; Id. tit. 11, art. 2; Id. liv. 
3, tit. 1, art. 11. 


AGRI, Arable lands in common fields. 


AGRI LIMITATI. In Roman law. 
Lands belonging to the state by right of con- 
quest, and granted orsold in plots. Sandars, 
Just. Inst. (5th Ed.) 98. 


AGRICULTURE, A person actually 
engaged inthe “science of agriculture” ( with- 
in the meaning of a statute giving him spe- 
cial exemptions) is one who derives the aup- 
port of himself and his family, in whole or in 
part, from the tillage and cultivation of fields. 
He must cultivate something more than a 


AGUSADURA 


garden, although if may be much less than a 
farm, If the area cultivated can be called a 
field, it is agriculture, as well in contempla- 


tion of law as in the etymology of the word. | 


And if this condition be fulfilled, the uniting 
of any other business, not inconsistent with 
the pursuit of agriculture, does not take away 
the protection of the statute. 22 Pa. St. 193. 
See, also, 7 Heisk. 515; 62 Me. 526; 64 Ga. 
128. 

AGUSADURA. In ancient customs, a 
fee, due from the vassals to their lord for 
sharpening their plowing tackle. 


AUHTEID. Inold Europeanlaw. A kind 
of oath among the Bavarians. Spelman. In 
Saxon law. One bound by oath, g. d. “oath- 
tied.” From ath, oath, and tied. Id. 


AID, v. Tosupport, help, or assist. This 


word must be distinguished from its syno- | 


nym “encourage,” the difference being that 
the former connotes active support and assist- 
ance, while the latter does not; and also from 
“abet,” which last word imports necessary 
criminality in the act furthered, while “aid,” 
standing alone, does not. 


AID AND COMFORT. Help; support; 
assistance; counsel; encouragement, 

As an element in the crime of treason, the 
giving of “aid and comfort” to the enemy 
may consistin a mere attempt. It is not es- 
sential to constitute the giving of aid and 
comfort that the enterprise commenced 
should be successful and actually render as- 
sistance. 4 Sawy. 472; 97 U.S. 62. 


AID OF THE KING, The king’s ten- 
ant prays this, when rent is demanded of him 
by others. ' 


AID PRAYER. In English practice. A 
proceeding formerly made use of, by way of 
petition in court, praying in aid of the ten- 
ant for life, ete., from the reversioner or re- 
mainder-man, when the title to the inherit- 
ance was in question. It was a plea in sus- 
pension of the action. 3 Bl. Comm, 300. 


AIDER BY VERDICT. Thehealing or 
remission, by a verdict rendered, of a defect 
or error in pleading which might have been 
objected to before verdict. 

The presumption of the proof of all facts 
necessary to the verdict as it stands, coming 
to the aid of a record in which such facts are 
not distinctly alleged. 


AIDING AWD ABETTING. In crim- 
inal law. That kind of connection with the 
comission of a erime which, at common 


56 AISIAMENTUM 


law, rendered the person guilty as a princlpal 
in the second degree, It consisted in being 
present at the time and place, and doing 
some act to render aid to the actual perpetra- 
tor of the crime, though without taking a 


direct share in its commission. See 4 bi. 
Comm. 34. ! 
AIDS. In feudal law, originally mere 


benevolences granted bya tenant to his lord, 
in times of distress; but at length the lords 
claimed them as of right. They were prin- 
cipally three: (1) To ransom the lord’s per- 
son, if taken prisoner; (2) to make the lord's 
eldest son and heirapparent a knight; (3) to 
give a suitable portion to the lord’s eldest 
daughter on her marriage. Abolished by 12 
Car. II. c. 24. 

Also, extraordinary grants to the crown by 
the house of commons, and which were the 
origin of the modern system of taxation. 2 
Bl. Comin. 63, 64. 


ATEL, Aioeul, Aile, Ayle. 
grandfather. 

A’ writ which lieth where the grandfather 
was seised in his demesne ag of fee of any 
lands or tenements in fee-simple the day that 
he died, and a stranger abateth or entereth 
the same day and dispossesseth the heir. 
Fitzh. Nat. Brey. 222; Spelman; Termes 
de ja Ley; 3 Bl. Comm. 186. 


AIELESSE. A Norman French term sig- 
nifying “grandmother.” Kellam, 


AINESSE. In Freneh feudal law. The 
right or privilege of the eldest born; primo- 
geniture; esnecy. Guyot, Inst. Feud. ¢, 17. 


AIR. That fluid transparent substance 
which surrounds our globe, 


AIRE. In old Scotch law. ‘The court of 
the justices itinerant, corresponding with the 
English eyre, (g. 0.) Skene de Verb. Sign. 
voc. [ter. 


AIRT AND PAIRT. Inold Scotch crim- 
inallaw. Accessary; contriver and partner. 
1 Pite. Crim. Tr. pt.1, p. 183; 3 How. State 
Tr. 601. Now written art and part, (q. v.) 


AIR-WAY. InEnglishlaw. <A passage 
for the admission of airintoamine. To ma- 
liciously fill up, obstruct, or damage, with in- 
tent to destroy, obstruct, or render useless 
the air-way toany mine, is a felony punishable 
by pena) servitude or imprisonment at the 
discretion of the court. 24 & 25 Vict. o. 97, 
§ 28. 


AISIAMENTUM. 
An easement. 


Ler ~* 


In old Engiish law. 
Spelman. 


AISNE 


AISNE or EIGNE. 


; In old English 
Jaw, the eldest or first born, 


AJOURNEMENT. In French law. 
The document pursuant to whieh an action or 
auit ls courmenced, equivalent to the writ of 
simmons in England. Actions, however, 
Are in BOMe cases commenced by regucte or 
petition. Arg. Fr. Merc. Law, 545. 


AJUAR. In Spanish law. Parapherna- 
fia. The jewels and furniture which a wife 
brings in marriage. 


AJUTAGE. A tube, conical in form, in- 
tended to be applied to an aperture through 
which water passes, whereby the flow of the 
water is greatly increased. See 2 Whart. 
477, 


AKIN. In old English iaw. 
“Next-a-kin.” 7 Mod. 140. 


Al. L. Fr. Atthe; tothe. Albarre; at 
the bar. Al huts d’esglise: at the church- 
door, 


ALS HCCLESIA. The wings or side 
aisles of a church. Blount. 


ALANERARIUS. A manager and keep- 

er of dogs for the sport of hawking; from 
' aanus, a dog known tothe ancients. A fal- 
eoner. Blount. 


ALARM LIST. The list of persons liable 
to military watches, who were at the same 
time exempt from trainings and musters. 
See Prov. Laws 1775-76, c. 10, § 18; Const. 
_ Mass. c. 11, § 1, art. 10; Pub. St. Mass. 1882, 
p. 1287, 


ALBA FIRMA. In old English law. 
White rent; rent payable in silver or while 
money, as distinguished from that which was 
ancieatly paid in corn or provisions, called 
black mail, or black rent. Spelman; Reg. 
Orig. 3199. 
ALBANAGIUM, In old French law. 
The state of alisnage; of being a foreigner or 
lien. 

ALBANUS. In old French law, 
atranger, alien, or foreigner. 


ALBINATUS. Inold French law. The 
state or condition of an alien or foreigner, 


ALBINATUS JUS. Inold French law. 
The droit @aubaine in France, whereby the 
king, at an alien’s death, was entitled to all 
his property, unless he had peculiar exemp- 
tien. Repealed by the French laws in June, 
Wl. 


Of kin. 


] 
J 


AS 


57 


ALDERMANNUS 


ALBUM BREVE. A blank writ; a writ 
with a blank or omission in it. 


ALBUS LIiBER, The white book; an 
ancient book containing a compilation of the 
law and customs of the city of London. It 
has lately been reprinted by order of the mas- 
ter of the rolls. 


ALCABALA. In Spanish law. <A duty 
of a certain per cent. paid to the treasury on 
the sale or exchange of property. 


ALCALDE. The name cf a judicial of- 
fieer in Spain, and in those countries which 
have received their laws and institutions 
from Spain. His functions somewhat re- 
sembled those of mayor in small municipali- 
ties on the continent, or justice of the peace 
in England and most of the United States. 


ALDERMAN. A judicial or adminis- 
trative magistrate, Originally the word was 
synonymous with “elder,” but was also used 
to designate an earl, and even a king. 

In English iaw. An associate te the 
chief civil magistrate of a corporate town or 
eity, 

In American cities. The aldermen are 
generally a legislative body, having limited 
judicial powers as a body, as in matters of 
internal police regulation, laying oul and re- 
pairing streets, constructing sewers, and the 
like; though in many cities they hold sepa- 
rate courts, and have magisteriai powers to 
a considerable extent. Bouvier. 


ALDERMANNUS CIVITATIS VEL 
BURGI. L. Lat. Alderman of a city or 
berough, from which the modern ottice of 
alderman has been derived. T, Raym. 435, 
437. 


ALDERMANNUS COMITATUS. The 
alderman of the county. According to Spel- 
man, he held an office intermediate between 
that of an earl anda sheriff. According to 
other authorities, he was the same as the 
earl, 1 Ll. Comm. 116. 


ALDERMANNUS HUNDREDI SEU 
WAPENTACHII. Alderman of a hundred 
or wapentake. Spelman. 


ALDERMANNUS REGIS. Alderman 
of the king. So called, either because he re- 
ceived his appointment from the king or be- 
cause he gave the judgment of the king in 
the premises allotted to him. 


ALDERMANNUS TOTIUS ANGLIA. 
Alderman of all England. An officer among 
the Anglo-Saxons, supposed by Spelman te 


ALE-CONNER 


be the same with the chief justiciary of Eng- 
land in Jater times. Spelman. 


ALE-CONNER. An officer appointed by 
the court-leet, sworn to look to the assise and 
goodness of ale and beer within the precincts 
of the leet. Kitch. Courts, 46; Whishaw. 

An officer appointed in every court-leet, 
and sworn to look to the assise of bread, ale, 
or beer within the precincts of that lordship. 
Cowell. 


ALE-HOUSE. A place where ale is sold 
to be drunk on the premises where sold. 


ALE SILVER. A rent or tribute paid 
annually to the lord mayor of London, by 
those who sell ale within the liberty of the 
city, 


ALE-STAKE. A maypole or long stake 
driven into the ground, with a sign on it for 


the sale of ale. Cowell. 
ALEA. Lat. In thecivillaw. A game 
of chance or hazard. Dig.11,5,1. See Cod, 


3, 43. The chance of gain or loss in a con- 
tract. 


ALEATOR. Lat. (From alea,qg.v.) In 
the civil law. A gainester; one who plays 
al games of hazard. Dig. 11, 5; Cod. 3, 48. 


ALEATORY CONTRACT. A mutual 
agreement, of which the effects, with respect 
both to the advantages and losses, whether 
to all the parties or tu some of them, depend 
on an uncertain event. 
2982. 

A contract, the obligation and performance 
of which depend upon an uncertain event, 
such as insurance, engagements to pay au- 
nuities, and the like. 

A contract is aleatory or hazardous when 
the performance of that which is one of its 
objects depends on an uncertainevent. It is 
certain when the thing to be done is supposed 
to depend on the will of the party, or when 
in the usual course of events it must happen 
in the manner stipulated. Civil Code La. art. 


1776. 
ALER A DIEU. L. Fr. In old prac- 
tice. ‘To be dismissed from court; to go quit. 


Literally, “to go to God.” 


ALER SANS JOUR. In old practice, a 
phrase used to indicate the final dismissal of 
a case from court without continuance. “To 
go without day.” 


ALEU. Fr. InFrench feudal law. An 


Civil Code La. art. | 


58 


ALIEN 


ALFET. A cauldron inte which boiling 
water was poured, in which a crimina 
plunged his arm up to the elbow, and thera 
held it for some time, as an ordeal. Du 
Cange. 


ALGARUM MARIS. Probably a cor- 
ruption of Laganum maris, lagan being 4 
right, in the middleages, like jetsam and flot- 
sam, by which goods thrown from a vessel 
in distress became the property of the king, 
or the lord on whose shores they were strand. 
ed. Spelman; Jacob; Du Cange. 


ALGO, Span. In Spanish law. Prop- 
erty. White, Nov. Recop. b. 1, tit. 5, ¢. 3, 


§ 4. 


ALIA ENORMIA,. Otherwrongs. The 
name given toa general allegation of injuries 
caused by the defendant with which the plain- 
tiff in an action of trespass under the com- 
mon law practice coneluded his declaration. 
Archb. Crim. Pl. 694. 


ALIAMENTA. A liberty of passage, 
open way, water-course, ete., for the tenant's 
accommodation. Kitchen. 


ALIAS. In practice. Formerly; hither- 
to; at another time. An elias writ is a sue- 
ond writ issued in the same ciuuse, where a 
former writ of the same kind had been issued 
without effect. In such case, the language 
of the second writ is, “We command you, as 
we have before [sieut alias] commanded you,” 
etc. 


ALIAS DICTUS. “Otherwise called.” 
This phrase (or its shorter and more usual 
form, edéas,) when placed between two names 
in a pleading or other paper, indicates that 
the same person is known by both those 
names. A fictilions name assumed by a& per- 
son is colloquially termed an “alias,” 


ALIBI. Lat. In criminal law. Else 
where; in another place. A term used to ex- 
press that mode of defense to a criminal pros- 
ecution, where the party accused, in order to 
prove that he could not have committed the 
crime with which he is charged, offers evi- 
dence to show that he was in another place 
at the time; which is termed setting up an 
aiibi. Tomlins. 


ALIEN, n. A foreigner; one born abroad; 
a person resident in one country, but owing 
allegiance toanother. In England, one born 
out of the allegiance of the king. In the 


allodial estate, as distinguished from a feudal | United States, one born ont of the jurisdiction 


estate or benefice. 


of the United States, and who has not been 


ALIEN AMY 


omaturalized under their constitution and laws. | 


2 Kent, Comm, 50. 


ALIEN AMY. In international law. 
Alien friend. An alien who'is the subject 
or citizen of a foreign government at peace 
with our own. ' 


ALIEN AND SEDITION LAWS. 
Acts of congress of July 6 and July 14, 1798. 
See Whart. State Tr. 22. 


ALIEN HNEMY. In international law. 
An alien who is the subject or citizen of 
some hostile state or power. See Dyer, 20; 
Co, Litt, 1296. A person who, by reason of 
owing a permanent or temporary allegiance 
to a hostile power, becomes, in time of war, 
impressed with the character of an enemy, 
and, a8 auch, is disabled from suing in the 
courts of the=adverse belligerent. See 1 
Kent, Comm. 74; 2 Id. 68; 10 Johns, 1838. 


ALIEN FRIEND. ‘The subject of a na- 
tion with which we are at peace; an alien 
amy. 


ALIEN NEE. A man born an alien. 


ALIEN or ALIHNE. 2. ‘To transfer or 
make over to another; to convey or transfer 
the property of a thing from one person to 
another; to alienate. Usually applied to the 
trunsfer of lands and tenements. Co. Lift. 
118; Cowell. 


Aliena negetia exacto officio gerun- 
tur. The business of another is to be con- 
ducled with particular attention. Jones, 
‘Baiim. 83; 79 Pa. St. 118, 


ALIENABILE. Proper to be the subject 
of alienation or transter. 


ALITENAGE. The condition or state of 
an alien, 


ALIENATE. Toconvey; to transfer the 
title to property. Co. Litt. 1182, Alden is 
very commonly used in the same sense, 1 
Washb. Real Prop. 53. 

“Sell, atienaie, and dispone” are the formal 
words of transfer in Scotch conveyances of 
heritable property. Bell. 

“The term @elienate has a technical legal 
meaning, and any transfer of real estate, 
short of a conveyance of the title, is not an 
alienation of the estate. No matter in what 
form the sale may be made, unless the title 
is conveyed to the purchaser, the estate is not 
alienated,” 11 Barb. 630. 


Alienatio licet prohibeatur, consensu 
famen omniuni, in quorum favorem pro- 


49 


ALIEN US 


hibita est, potest fleri, et quilibet potest 
renunciare juri pro se introducto, Al- 
though alienation be prohibited, yet, by the 
consent of all in whose favor it is prohibited, 
it may take place; for it is in the power of 
any man to renounce a law made in his own 
favor. Co. Litt. 98. 


Alienatio rei prefertur juri accres- 
ecendi. Alienation is favored by the law 
rather than accumulation, Co. Litt. 185. 


ALTENATIOW. In real property law. 
The transfer of the property and possession 
of lands, tenements, or other things, from 
one person to another. Termes de la Ley, 
It is particularly applied to absolute convey- 
ances of real property. 1 N.Y. 290, 294. 

The act by which the title to real estate is 
voluntarily resigned by one person to another 
and accepted by the latter, in the forms pre- 
seribed by law. See 24 N. H. 558; 11 Barb. 
629; 31 Ill. 119. 

In medical jurisprudence. <A generic 
term denoting the different kinds of aberra- 
tion of the human understanding. 1 Beck, 
Med, Jur, 535. 


ALIENATION OFFICE. In English 
practice. An office for the recovery of fines 
levied upon writs of covenant and entries. 


Alienation pending a suit is void. 2 
P. Wms. 482; 2 Atk. 174; 3 Atk. 392; 11 
Ves. 194; 1 Johns. Ch. 566, 580. 


ALIENEE. One to whom an alienation, 
conveyance, or transfer of property is made, 


ALIENI GHNERIS. Lat. 
kind. 3 P. Wms, 247. 


ALIENI JURIS. Under the control, or 
subject lo the authority, of another person; 
e. g.. an infant who is under the authority 
of his father or guardian; a wife under the 
power of her husband. The term is con- 
trasted with Sur Juris, (g. v.} 


ALIENIGENA. One of foreign birth; 
analien. 7 Coke, 31. 


ALIENISM. The state, condition, or 
character of an alien, 2 Kent, Com. 56, 
64, 69. 


ALIEWNOR. He who makes a grant, 
transfer of title, conveyance, or alienation. 


ALIENUS, Lat. Another's; belonging 
to another; the property of another. 
homo, another's man, or slaye. Inst. 4, d, 
pr. Alena res, another's property, Bract. 
fol. 158. 


Of another 


Aliens 


K 


Mi 


ALIMENT 


ALIMENT. In Scotch law. To main- 
tain, support, provide for; to provide with 
necessiries. As a noun, maintenance, sup- 
port; an allowance from the husbind’s estate 
for the support of the wife. Paters. Comp. 
§§ 845, 850, 893. 


ALIMENTA. Lat. In the civil law. 
Aliments; means of support, ineluding food, 
(cébaria,) clothing, (vestitus,) and habita- 
tion, (Aabiteéie.) Dig. 34, 1, 6. 


ALIMONY. The allowance oa to a 
wife out of her husband’s estate for her sup- 
port, either during a matrimonial suit, or at 
its termination, when she proves herself en- 
titled toa separate maintenance, and the fact 
of a marriage is established. 

Alimony is an alluwance out of the hus- 
band’s estate, mnde for the support of the 
wife when living separate from him, It is 
either temporary or permanent. Code Ga, 
1882, § 1736. 

The allewanee which is made by order of 
court to a woman for her support out of her 
husband's estate, upon being separated from 
him by divorce, or pending a suit for divorce. 
Pub. st. Mass. 1882, p. 1287. 

Ly alimony we understand what is neces- 
sary for the nourishment, lodging, and sup- 
port of the person who claimsit. Itincludes 
education, when the person to whom the ali- 
mony is due isa minor. Civil Code ha. art. 
230. 

The term is commonly used as equally ap- 
plicable to all allowances, whether annual or 
in gross, made to a wife upon a decree in di- 
voree. 107 Mass. 432. 

Alimony pendente lite is that ordered dur- 
ing the pendency of a suit. 

Permanent alimony is that ordered for the 
use of the-wife after the termination of the 
suit during their joint lives. 


ALIO INTUITU. Lat. In a different 
view; under a different aspect. 4 Rob. 
Adm. & Pr. 151. 

With another view or object. 
6 Maule & S. 234. 


7 East, 558; 


Aliguid conceditur ne injuria rema-~ 
neat impunita, quod alias non conce- 
deretur. Something is (will be) conceded, 
to prevent a wrong remaining unredressed, 
which otherwise would not be conceded. Co. | 
Litt. 1976, 


ALIQUID POSSESSIONIS ET NI- 
HIL JURIS. Somewhat of possession, and 
nothing of right, (but no right.) A phrase | 


60 


ALL THE ESTATE 


used by Bracton to describe that kind of pos- 
session which a person might have of a thing 
asa guardian, creditor, or the like; and also 
that kind of possession which was granted 
for a term of years, where nothing could be 
demanded but the usufruct. Bract. fols. 
39a, 160. 


Aliquis non debet esse judex in pror 
pria causa, quia non potest esse judex 
et pars. A person ought not to be judge in 
his own cause, because he cannot act as judge 
and party. Co. Litt. 141; 3 Bl. Comm. 59, 


ALITER., Lat. Otherwise. 
often used in the reporis, 


A term 


Aliud est celare, aliud tacere. To con- 
ceal is one thing; to be silent is another 
thing. Lord Mansfield, 3 Burr. 1910. 


Aliud est distinetio, aliud separatio. 
Distinction is one thing; separation is an- 
other. Itis one thing to make things dis- 
tinct, another thing to make them separable. 


Aliud est possidere, alind esse in pos- 
sessione. Jt is one thing to possess; it ta 
another to be in possession. Hob, 163. 


Aliud est venders, aliud vendenti con- 
sentire. To sell is one thing; to consent to 
a sale (seller) is another thing. Dig. 50, 17, 
160. 


ALIUD EXAMEN. A dilferent or for- 
eign mode of trial. 1 Hale, Com. Law, 38. 


ALIUNDE. Lat, From another source; 
from elsewhere; from outside. Ividence 
aliunde (7. e., from without the will) may be 
received to explain an ambiguity in a will. 
1 Greenl. Ey. § 201. 


“ALL FAULTS.” A sale of goods with 
“all faults” covers, in the absences of fraud 
on the part of the vendor, all such faults and 
defects as are not inconsistent with the iden- 
tity of the goods as the goods described. 118 
Mass. 242. 


ALL FOURS. Two cases or decisions 
which are alike in all material respects, and 
precisely similar in all the circumstances af- 
fecting their determination, are said to be or 
to run on “all fours.” 


ALL THE ESTATE. The name given 
in England to the short clause in a convey- 
ance or other assurance which purports te 
convey “all the estate, right, title, interest, 
claim, and demand” of the grantor, lessor, - 
etc., in fhe property deait with. Dav. Conv. 
93. 


ALLEGANS 


legans contraria non est audiendus. 

s alleging contrary or contradictory things 
ose statements contradict each other) is 
ai to be heard. 4 Inst.279. Applied to the 
ements of a wilness. 


Allegans suam turpitudinem non est 
éndus. One who alleges his own in- 
yis not to be heard. 4 Inst. 279. 


Allegari non debuit quod probatum 
non relevat. That ought not to be alleged 
which, if proved, is not relevant. 1 Ch. 
Cas, 45, 


ALLEGATA. In Romanlaw. <A word 
whieh the emperors formerly signed at the 
bottom of their rescripts and constitutions; 
ander other instruments they usually wrote 
stgnata or testata, Enc. Lond. 


ALLEGATA ET PROBATA. Lat. 
Things alleged and proved. ‘fhe allegations 
made by a party to a suit, and the proof ad- 
duced in their support. 


Allegatio contra factum non est ad- 
mittenda. An allegation contrary to the 
deed (or fact) is not admissible. 


ALLEGATION. The assertion, declara- 
tion, or statement of a party to an action, 
made in a pleading, setting out what he ex- 
pects to prove. 

A material allegation in a pleading is one 
essential to the claim or defense, and which 
eould not be stricken from the pleading with- 
out leaving it insufficient. Code Civil Proc. 
Cal. § 463. : 
In ecclesiastical law. The statement of 
the facts intended to be relied on in support 
of the contested suit. 

In English ecclesiastical practice the word 
seems to designate the pleading as a whole; 
the three pleadings are known as the allega- 
tions; and the defendant’s plea is distin- 
guished as the defensive, or sometimes the 
responsive, allegation, and the complainant's 
reply as the rejoining allegation. 
ALLEGATION OF FACULTIES. A 
statement made by the wife of the property 


of her husband, in order to her obtaining ali- 
mony. 11 Ala. 763; 3 Tex. 108. 


ALLEGE. To state, recite, assert, or 
charge; to make an allegation. 

ALLEGED. Staied; recited; claimed; as- 
serted; charged. . 


ALLEGIANCE. By allegiance ia meant 
the obligation of fidelity and ovedience which 
the individual owes to the government under 


6i 


ALLISION 


which he lives, or to his sovereign in return 
for the protection he receives. It may be an 
absolute and permanent obligation, or it may 
be a qualified and temporary one. The citi- 
zen or subject owes an absolute and perma- 
uent allegiance to his government or sover- 
cign, or at least until, by some open and dis- 
tinct act, he rencunces it and becomes a cit- 
izen or subject of another government or 
another sovereign. The alien, while domi- 
ciled in the country, owes a local and tempo- 
rary allegiance, which continues during the 
period of his residence. 16 Wall. 154, 

“The tie or ‘7gamen which binds the subject 
[or citizen] te the king [or government] in 
return for that protection which the king 
[or government] affords the subject, [or cit- 
izen.”} 1 Bl. Comm. 866. It consists in “a 
true and faithful obedience of the subject due 
to his sovereign.” 7 Coke, 40, 

Allegiance is the obligation of fidelity and 
obedience which every citizen owes to the 
state, Pol. Code Cal. § 55. 

In Norman Freneh. Alleviation; relief; 
redress. Kelham. 


ALLEGIARE. Todefend and clear one's 
aclf; to wage one’s own law. 


ALLEGING DIMINUTION. ‘The al- 
legation in an appellate court, of soma error 
in asubordinate part of the xést prius reeord. 


ALLEVIARE. L. Lat. In old records. 
To levy or pay an accustomed fine or compo- 
sition; te redeem by such payment. Cowell. 


ALLIANCE. The relation or union be- 
tween persons or families contraeted by in- 
termarriage, 

In international law. A union or asso- 
ciation of twe or more states or nations, 
formed by league or treaty, for the joint pros- 
ecution of a war, or for their mutual assist- 
ance and protection in repelling hostile at- 
tacks. ‘The league or treaty by whieh the 
association is formed. The act of confeder- 
ating, by league or treaty, for the purposes 


mentioned, 

lf the alliance is formed for the purpose of 
mutual aid in the prosecution of a war against 
a common enemy, it is called an “offensive” 
allisnee. If it contemplates only the rendi- 
tion of aid and protection in resisting the as- 
sault of a hostile power, it is called a “de- 
fensive” alliance. If it combines both these 
features, it is denominated an allianee “of- 

| fensive and defensive.” 


ALLISION. The running of one vessel 
|-imte or against another, as distinguished 


ea 


ALLOCATION 


from acollision, 7. 2, the running of two ves- 
sels against each other. 


ALLOCATION. An allowance made 
upon an account in the English exchequer. 
Cowell. 


ALLOCATIONE FACIENDA. In old 
English practice. A writ for allowing to an 
accountant such sums of money as he jiath 
lawfully expended in his office; directed to 
the lerd treasurer and barons of the ex- 
chequer upon application made. Jacob. 


ALLOCATO COMITATU. In old En- 
glish practice. In proceedings in outlawry, 
when there were but two county courts 
holden between the delivery of the writ of 
exigt facias to the sheriff and its return, a 
special exigt factas, with an allocate com- 
ttatu issued to the sheriff in order to com- 
plete the proceedings. See EXIGENT. 


ALLOCATUR. Lat. Itis allowed. A 
word formerly used to denote that a writ or 
order was allowed, 

A word denoting the allowance by a mas- 
ter or prothonotary of a bill referred for his 
consideration, whether touching costs, dam- 
ages, or matter of account. Lee. 


ALLOCATUR EXIGENT. A species 
of writ anciently issued in outlawry proceed- 
ings, on the return of the original writ of 
exigent. 1 Tidd, Pr. 128. 


ALLOCUTUS. In criminal procedure, 
when a prisoner is convicted on a trial for 
treason or felony, the court is bound to de- 
mand of him what he has to say as to why 
the court should not proceed to judgment 
against him; this demand is called the “ai- 
focutus,” and is entered on the record. 
Arehb, Crim, Pl. 173. 


ALLODARII. Owners of allodial lands. 
Owners of estates as large as a subject may 
have. Co. Litt. 1; Bac. Abr. “Tenure,” A. 


ALLODIAL. Free; not holden of any 
lord or superior; owned without obligation 
of vassalage or fealty; the opposite of feudal. 


ALLODIUM. Land held absolutely in 
one’s own right, and not of any lord or su- 
perior; land not subject to feudal duties or 
burdens. 

An estate held by absolute ownership, 
without recognizing any superior to whom 
any duty is due on account thereof. 1 
Washb. Real Prop. 16. 


62 ALLOTTEE 


ALLOGRAPH. A document not written 
by any of the parties thereto; opposed to 
autograph. 


ALLONGE. When the indorsements on 
a bill or note have filled all the blank space, 
it is customary to annex a strip of paper, 
called an “alionge,” to receive the further 
indorsements. 


ALLOT. To apportion, distribute; to 
divide property previously held in common 
among those entitled, assigning to each his 
ratable portion, to be held in severalty; to: 
set apart specific property, a share of a fund,. 
ete., toa distinct party. 


In the law of corporations, to allot shares, 
debentures, ete., is to appropriate them to the 
applicants or persons who have applied for 
them; this is generally done by sending to 
each applicant a letter of allotment, inform- 
ing him that a certain number of shares have 
been allotted to him. Sweet. 


ALLOTMENT. Partition, apportion- 
ment, division; the distribution of land un- 
der an inclosure act, or shares in a public 
undertaking or corporation. 


ALLOTMENT NOTE. A writing by @ 
seaman, whereby he makes an assignment 
of part of his wages in favor of his wife, fa- 
ther or mother, grandfather or grandmother, 
brother or sister. Every allotment note must. 
bein a form sanctioned by the board of trade, 
The allottee, that is, the person in whose 
favor it is made, may recover the amount in 
the county court. Mozley & Whitley. 


ALLOTMENT SYSTEM. Designates 
the practice of dividing land in small portions 
for cultivation by agricultural laborers and 
other cottagers at their leisure, and after they 
have performed their ordinary day’s work. 
Wharton. 


ALLOTMENT WARDEN. By the En- 
glish general inclosure act, 1845, § 108, when 
an allotment for the laboring poor of a district 
has been made on an inclosure under the act, 
the land so allotted is to be under the man- 
agement of the incumbent and church war- 
den of the parish, and two other persons 
elected by the parish, and they are to be styled 
“the allotment wardens” of the parish. 
Sweet. 


ALLOTTEE. Oneto whom an allotment 
is made, who receives a ratable share under 
an allotment; a person to whom land under 
an inclosure act or shares in a public under- 


| taking are allotted. 


ALLOW 


ALLOW. To grant, approve, or permit; 
a§ to allow an appeal or a murriage; to allow 
anaceount. Also to give a fit portion out 
of a larger property or fund. 


ALLOWANCE. A deduction, an aver- 
age paynient, a portion assigned or allowed; 
the ast of allowing. 


ALLOWANCE PENDENTE LITE. 
Inthe English chancery division, where prop- 
erly which forms the subject of proceedings 
is more than suilicient to answer all claims in 
the proceedings, the court may allow to the 


parties interested the whole or part of the in- 


come, or (in the case of personalty) part of 
the property itself, St. 15 & 16 Vict, c. 86, 
§ 57; Daniell, Ch. Pr. 1070. 


ALLOY. <An inferior or cheaper metal 
mixed with gold or silyer in manufacturing 
orcoining. As respects coining, the amount 
of alloy is fixed by law, and is used to in- 
erease the hardness and durability of the 
coin. 


ALLOYNOUR. L. Fr. One who con- 
ceals, steals, or carries off a thing privately. 
Britt. e. 17. 


ALLUVIO MARIS. Lat. In the civil 
and old English law. The washing up of 
the sea; formation of soil or land from the 
sea; maritime increase. Hale, Anal. § 8 
“Alluvio maris is an increase of the land ad- 
joining, by the projection of the sea, casting 
upand adding sand and slubb to the adjoin- 
ing land, whereby it is increased, and for the 
most part by insensible degrees.” Hale, de 
Jure Mar. pt. 1, c. 6. 


ALLUVION. That increase of the earth 
on a shore or bank of a river, or te the shore 
of the sea, by the force of the water, as by a 
current or by waves, Which is so gradual that 
no one cain judge how much is added at eaeh 
moment of time. Inst.1.2,t.1,§20. Ang. 
Watereourses, 53. 

The term is chiefly used to signify a grad- 
ual increase of the shore ofa running stream, 
produced by deposits from the waters. 

By the common law, alluvion is the atidi- 
tion made to land by the washing of the sea, 
or a navigable river or other stream, when- 
ever the increase is so gradual that it cannot 
be perceived in any one moment of time. 
64 Tl. 58. 

Alluvion differs from avulsion in this: 
that the latter is sudden and perceptible. 23 
Wall. 46. See AVULSION. 


63 


ALTA VIA 


ALLY. A nation which has entered into 
an alliance with another nation. 1 Kent, 
Comm. 69. 

A citizen or subject of one of two or more 
allied nations. 


ALMANAC, A publication, in which is - 
recounted the days of the week, month, and 
year, both common and particular, distin- 
guishing the fasts, feasts, terms, etc., from 
the common days by proper marks, pointing 
out also the several changes of the moon, 
tides, eclipses, ete. 


ALMESFEOH. In Saxon law. Alms- 
fee; alms-money. Otherwise called “Peter- 
pence.” Cowell. 


ALMOIN. Alms; a tenure of lands by 
divine service. See FRANKALMOIGNE,. 


ALMOXARIFAZGO. In Spanish law. 
A general term, signifying both export and 
import duties, a3 well as excise. 


ALMS. Charitable donations. Any spe- 
cies of relief bestowed upon the poor, That 
which is given by public authority for the re- 
lief of the poor. 


ALNAGER or ULNAGER. A sworn 
officer of the king whose duty it was to look 
to the assise of woolen cloth made throughout 
the land, and to the putting on the seals for 
that purpose ordained, for which he collected 
a duty called “alnage.” Cowell; Termes de 
la Ley. 


ALNEHTUM. In old records, a place 
where alders grow, or a grove of alder trees. 
Doomsday Book; Co. Litt. 46. 


ALODE, Alodes, Alodis. 
feudal law. 
dium, (q. 0.) 


La Tat. In 
Cld forms of alodium, or allo- 


ALONG. This term means “by,” “on,” 
or “over,” according to the subject-matter 
and the context. 34 Conn. 425; 1 Barn. & 
Adol. 448; 67 Mo. 58. 


ALT, In Seotch practice. An abbrevia- 
tion of Alter, the other: the opposite party; 
the defender. 1 Broun, 336, note. 


ALTA PRODITIO. L. Lat. In ald 
English law. High treason. 4 BI. Comm. 
75. See Hien TREASON. 


ALTA VIA. L. Lat. In old English 
law. A highway; the highway. 1 Salk. 
222. Alta via regia; the king’s highway; 
“the king's high street.” Finch, Law, b. 2. 
(ee 


ALTARAGE 


ALTARAGE, In ecclesiastical law. Of- 
ferings made on the altar; all profits which 
accrue to the priest by means of the altar. 
Ayliffe, Parerg. 61. 


ALTER. To make a change in; to mod- 
ify; to vary in some degree; to change some 
of the elements or ingredients or details, 
without substituting an entirely new thing 
or destroying the identity of the thing at- 
fected. 

This term is to be distinguished from its 
synonyms “change” and “amend.” To 
change may import the substitution of an 
entirely different thing, while to alter is to 


operate upon a subject-matter which cone | 


tinues objectively the same while modified in 
some particular, If a check is raised, in re- 
spect to its amount, if is altered; if a new 
check is put in its place, itis changed. To 
“amend” implies that the modification made 
in the subject improves it, which is not nec- 
essarily the case with an alteration. An 
amendment always involves an alteration, 
but an alteration does not always amend. 


ALTERATION. Variation; changing; 
making different, 

An act done upon a wrilten instrument, 
which, without destroying the identity of 
the document, introduces some change into 
its terms, meaning, language, or details. 
This may be done either by the mutual agree- 
ment of the parties concerned, or by a person 
interested under the writing without the con- 
sent, or without the knowledge, of the others. 
in either case it is properly denominated an 
alteration; but if performed by a mere 
stranger, it is more technically described as 
aspoliation or mutilation. The term is not 
properly applied toany change which involves 
the substitution of a practically new docu- 
ment. And it should in strictness be re- 
served for the designation of changes in form 
or language, and not used with reference to 
moditications in matters of substance. 

An alteration is an act done upon the in- 
strument by which its meaning or language 
is changed. If what is written upon or 
erased from the instrument has no tendency 
to produce this result, or to mislead any per- 
son, it is not an alteration. 5 Neb. 444, 

An alteration is said to be material when 
it affects, or may possibly affect, the rights 
of the persons interested in the document. 


Alterius circumventio alii non pre- 
bet actionem. Thedeceiving of one person 
does not afford an action to another. Dig. 
50, 17, 49. 


64 


ALTIUS NON TOLLENDI 


ALTERNAT. A usage among diploma- 
tists by which the rank and places of differ- 
ent powers, who have the same right and 
pretensions to precedence, are changed from 
time to time, either in a certain regular order 
or one determined by lot. In drawing up 
treaties and conventions, for example, it is 
the usage of certain powers to alternate, both 
in the preamble and the signatures, so that 
each power occupies, in the copy intended to 


be delivered to it, the first place. Wheat, 
Int. Law, § 157. 
ALTERNATIM. L. Lat. Interchange 


ably. Litt. § 371; Townsh. Pl. 37. 


Alternativa petitio non est audienda. 
An alternative petition or demand is not to 
be heard. 5 Coke, 40. 


ALTERNATIVE. One or the other of 
two things; giving an option or choice; al- 
lowing a choice between two or more things 
or acts to be done. 


ALTERNATIVE OBLIGATION. An 
obligation allowing the obligor to choose 
which of two things he will do, the perform- 
ance of either of which will satisfy the in- 
strument. 

Where the things which form the object of 
the contract are separated by a disjunctive, 
then the obligation is allernative. A prom- 
ise to deliver a certain thing or to pay a 
specilied sum of money, is an example of this 
kind of obligation. Civil Code La. art. 2U66. 


ALTERNATIVE REMEDY. Where a 
new remedy is created in addition to an ex- 
isting one, they are called “alternative” if 
only one can be enforced; but if both, “cu- 
mulative.” 


ALTERNATIVE WRIT. A writ com- 
manding the person against whom it is is- 
sued todo a specified thing, or show cause 
to the court why he should not be compelled 
to do it. 


ALTERNIS VICIBUS. L. Lat. By 
alternate turns; at alternate times; alter- 
nately. Co, Litt. 4as Shep. Touch. 206. 


ALTERUM NON LADERE. Not to 
injure another. This maxim, and two oth- 
ers, honeste vivere, and suum cuique tribuere, 
(q- v.,) are considered by Justinian as funda- 
mental principles upon which all the rules of 
law are based. Inst. 1, 1, 3. 


ALTIUS NON TOLLENDI. In the 
civil law. A servitude due by the owner of 
| a house, by which he is restrained trem build- 


ALTIUS TOLLENDI 


Ing beyond a certain height. 
Sandars, Just. Inst. 119. 


ALTIUS TOLLENDI. Inthe ciyil law. 
A servitude which consists in the right, to 
him who is entitled to it, to build his house 
as high as he may think proper. In general, 
however, every one enjoys this privilege, un- 
less he is restrained by some contrary title. 


Dig. 8, 2, 4; 


| Sandars, Just. Inst. 119. 


ALTO ET BASSO, High and low. 
This phrase is applied to an agreement made 
between two contending parties to submit all 
matters in dispute, adio et basse, to arbitra- 
tion. Cowell. 


ALTUM MARE. L. Lat. In old En- 
glish law. The high sea, or seas. Co. Litt. 
0b. The deepsea, Super altwm mare, on 
the high seas. Hob, 212b. 


ALUMNUS. A child which one has 
nursed; a foster-child. Dig. 40,2,14. One 
educated at a college or seminary is called an 
“alumnus” thereof. 


ALVEUS. The bed or channel through 
which the stream flows when it runs within 
\t8 ordinary channel. Calvin. 

Alveus derelictus, « deserted chanuel. 
Mackeld. Rom. Law, § 274. 


AMALGAMATION. A term applied in 
England to the merger or consolidation of 
two incorporated co1npanies or societies. 

In the case of the Empire Assurance Cor- 
poration, (1867,) L. R. 4 Eq. 347, the vice- 
chancellor said: “It is difficult to say what 
the word ‘amalgamate’ means. I confess at 
this moment J have not the least conception 
of what the full legal effect of the word is. 
Wedo not find itin any law dictionary, or 
expoiinded by any competent authority. But 
Tam quite sure of this: that the word ‘amal- 
gamate’ cannot mean that the execution of 
adeed shali make a man a partner in a firm 
in which he was not a partner before, under 
conditions of which he is in no way cognizant, 
and which are not the same as those contained 
In the former deed.” 


AMALPHITAN CODE. A collection 
of sea-laws, compiled about the end of the 
eleventh century, by the people of Amalphi. 
It consists of the laws on maritime 2ubjects, 
which were or had been in force in countries 
bordering on the Mediterranean; and was for 
a long time received as authority in those 
countries, Azuni; Wharton, 


AMANUENSIS. One who writes on be- 
half of another that whicl he dictates. 
AM. DICT. LAW—-5 


65 


AMBIGUITAS 


AMBACTUS. A messenger; a servant 
sent about; one whose services his master 
hired out. Spelman. 


AMBASCIATOR. A person sent about 
in the service of another; a person sent on a 
service. A word of frequent occurrence in 
the writers of the middle ages. Spelman. 


AMBASSADOR. In international law. 
A public officer, clothed with high diplomatic 
powers, commissioned by a sovereign prince 
or state to transact the international business 
| of his government at the court of the country 
to which he is sent. 

Ainbassador is the commissioner who rep- 
resents one cauntry in the seat of govern- 
ment of another. He isa public minister, 
which, usually, a consul is not. Brown. 

Ambassador is a person sent by one soy- 
ereign to another, with authority, by letters 
of credence, to treat on affairs of state. Ja- 
cob. 

The United States have always been rep- 
resented by ministers plenipotentiary, never 
having sent a person of the rank of an am- 
bassador, in the diplomatic sense. 1 Kent, 
Comm. 39, note. 


AMBER, or AMBRA. In old English 
law. A measure of four bushels. 


AMBIDEXTER. &killful with both 
hands; one who plays on both sides. Applied 
anciently to an attorney who took pay from 
both sides, and subsequently toa juror guilty 
of the same offense. Cowell. 


Ambigua responsio contra proferen- 
tem est accipie da. An ambiguous an- 
swer is to be taken against (is not to be con- 
strued in favor of} him who offers it. 10 
Coke, 59. 


Ambiguis casibus semper presumitur 
pro rege. In doubtful cases, the presump- 
tion always is in behalf of thecrown. Lofft, 
Append. 248. 


AMBIGUITAS. Lat. From embiguus, 
doubtful, uncertain, obscure. Ambiguity; 
uncertainty of meaning. 


Ambiguitas verborum latens verifica- 
tione suppletur; nam quod ex facto 
oritur ambiguum verifications facti tol- 
litur. <A latent ambiguity in the language 
may be removed by evidence; for whatever 
ambiguity arises from an extrinsic fact may 
be explained by extrinsic evidence. Bac, 

| Max. reg. 23. 


AMBIGUITAS 


Ambiguitas verborum patens null& 
verificatione excluditur. A patent am- 
biguity cannot be cleared up by extrinsic evi- 
dence. Lofft, 249. 


AMBIGUITY. Doubtfulness; double- 
ness of meaning; indistinctness or uncer- 
tainty of meaning of an expression used ina 
written instrument, 

Latent ambiguity is where the language 
employed is clear and intelligible and suggests 
but a single meaning, but some extrinsic fact 


or evidence aliunde, creates a necessity for | 


interpretation or a choice among two or more 
possible meanings. 

Patent ambiguity is that which appears on 
the face of the instrument, and arises from 
the defective, obscure, or insensible language 
used, 

Ambiguity of language is to be distin- 
guished from unintelligibility and inaccuracy, 
for words cannot be said to be ambiguous 
unless their signification seems doubtful and 
uncertain to persons of competent skill and 
knowledge to understand them. Story, Contr. 
272, 

The term “ambiguity” does not include 
mere inaccuracy, or such uncertainty as arises 
from the use of peculiar words, or of common 
words in a peculiar sense. Wig. Wills, 174. 


Ambiguum pactum contra venditorem 
interpretandum est. An ambiguous con- 
tract is to be interpreted against the seller. 


Ambiguum placitum imterpretari de- 
bet contra proferentem. An ambiguous 
plea ought to be interpreted against the party 
pleading it. Co. Litt. 308d. 


AMBIT. A boundary line, as going 
arcund a place; an exterior or inclosing line 
or limit. 

The limits or circumference of a power or 
Juvisdiction; the linecireumscribing any sub- 
ject-matter. 


AMBITUS. IntheRomanlaw. A going 
around; a path worn by going around. A 
space of at least twoand a half feet in width, 
between neighboring houses, left for the con- 
venience of going around them. Calvin. 

The procuring of a public office by money 
or gifts; the unlawful buying and selling of 
a public office. Inst. 4, 18, 11; Dig. 48, 14. 


Ambulatoria est voluntas defuncti 
usque ad vite supremum exitum., The 
will of a deceased person is ambulatory until 
the latest moment of life. Dig. 34, 4, 4, 


AMENDMENT 


AMBULATORY. 
subject to change. 

Ambulatoria voluntas (a changeable will) 
denotes the power which a testator possesses 
of altering his will during his life-time. 

The court of king’s bench in England was 
formerly called an “ambulatory court,” be- 
cause it followed the king's person, and was 
held sometimes in one place and scimetimes 
In another. So, in France, the supreme court 
or patliament was originally ambulatory. 3 
Bl. Comm. 38, 89, 41. 

The return of a sheriff has been said to be 
ambulatory until it is filed. Wilmot, J., 3 
Burr. 1644. 


Movable; revocable; 


AMBUSH. The noun “ambush” means 
(1) the act of attacking an enemy unexpect- 
edly from a concealed station; {2} a concealed 
station, where troops or enemies lie in wait 
to attack by surprise, an ambuscade; (3) 
troops posted in a concealed place for attack- 
ing by surprise. The verb “ambush” means 
to lie in wait, to surprise, to place in am- 
bush. 46 Ala. 142, 


AMELIORATIONS. Betterments; im- 
provements, 6 Low. Can. 294; 9 Id. 503. 


AMENABLE. Subject to answer to the 
law; accountable; responsible; liable to pun- 
ishment, 

Also means tractable, that may be easily 
led or governed; formerly applied to a wife 
who is governable by her husband. Cowell, 


AMEND. To improve; to make better 
by change or modification. See ALTER. 


AMENDE HONORABLE. In old En- 
glish luw. A penalty imposed upon a person 
by way of disgrace or infamy, as a punishment 
for any offense, or for the purpose of making 
reparation for any injury done to another, as 
the walking into church in a white sheet, 
with a rope about the neck and a torch in the 
hand, and begging the pardon of God, or the 
king, or any private individual, for some de- 
linquency. bouvier. 


In French law. A species of punish- 
ment to which offenders against public de- 
eency or morality were anciently condemned. 


AMENDMENT. In practice. Tha 
correction of an error committed in any pro- 
cess, pleading, or proceeding at law, or in eq- 
uily, and which is done either of course, or by 
the consent of parties, or upon motion to the 
court in which the proceeding is pending. 3 
BL Comm. 407, 448; 1 Tidd, Pr, 696, 


| 


AMENDMENT 


AMITA 


Any wriling made or proposed as an im- prochein ami, a next friend suing or defend- 


provement of some principal writing. 

In legislation. A modification or altera- 
tion proposed to be made in a/bill on its pas- 
gage, or an enacted law; also such modilica- 
tion or change when made. 


AMENDS. A satisfaction given by a 
wrong-doer to the party injured, fora wrong 
committed, 1 Lil. Reg. 81. 


AMENTIA. 
Insanity; idiocy. 


AMERALIUS. L. Lat. A naval coms 
mander, under the eastern Roman empire, 
but not of the highest rank; the origin, ac- 
cording to Spelman, of the modern title and 
office of admiral. Spelman. 


In medical jurisprudence, 


AMERCEH. To impose an amercement or 
fine; to punish by a fine or penalty. 


AMERCEMENT. A pecuniary penalty, 
in the nature of a fine, imposed upon a per- 
son for some fault or misconduct, he being “in 
mercy” for his offense, It was assessed by 
the peers of the delinquent, or the affeerors, 
or imposed arbitrarily at the discretion of the 
court or the lord. 

The difference between amercements and 
jines is as follows: The latter are certain, 
and are created by some statute; they can only 
be imposed and assessed by courts of record; 
the former are arbitrarily imposed by courts 
uot of record, as courts-leet. ‘Termes de la 
Ley, 40. 

The word “amercement” has long been es- 
pecially used of a mulct or penalty, imposed 
by a court upon its own officers for neglect of 
duty, or failure to pay over moneys collected. 
In particular, the remedy against a sheriff 
for failing to levy an execution or make re- 
turn of proceeds of sale is, in several of the 
atates, known as “amercement.” In others, 
the same result is reached by process of at- 
tachment. Abbott. 


AMERICAN CLAUSE. In marine in- 
surance. A proviso in a policy to the effect 
that, in case of any subsequent insuranee, tlie 
insurer shall nevertheless be answerable for 
tlie full extentof the sum subscribed by lim, 
without right to claim contribution from sub- 
sequent underwriters. 14 Wend. 399. 


AMEUBLISSEMENT. In French law. 
A species of agreement which by a fiction 
gives to immovable goods the quality of mav- 
able. Merl. Repert.; 1 Low, Can. 25, 58. 


AMI; AMY. A friend; as alien ami, an 
alien belonging to a nation at peace with us; 


ing for an infant, married woman, etc. 


AMICABLE ACTION. In practice. 
An action between friendly parties. An ac- 
tion brought and carried on by the mutual 
consent and arrangement of the parties, in 
order to obtain the judyment of the court on 
a doubtful question of law, the facts being 
usually settled by agreement. 


AMICABLE COMPOUNDERS. In 
Louisiana law and practice. “There are two 
sorls of arbitrators,—the arbitrators proper- 
ly so called, and the amicable compouncers. 
The arbitrators ought to determine ag judges, 
agreeably to the strictness of law. Amica- 
ble compounders are authorized to abate 
something of the strictness of the law in 
favor of natural equity. Amicable compound- 
ers are in other respects subject to the same 
rules which are provided for the arbitrators 
by the present title.” Civil Code La. arts. 
3109, 3110. 


AMICABLE SUIT. The words “arbi- 
tration” and “amicable lawsuit,” used in an 
obligation or agreement between parties, are 
not convertible terms. The former carries 
with it the idea of settlement by disin- 
terested third parties, and the latter by a 
friendly submission of the points in dispute 
toa judicial tribunal to be determined in ac- 


cordance with the forms of law. 20 La, 
Ann. 535, 
AMICUS CURIZ. Lat. A friend of 


the court. <A by-stander (usually a counsel- 
lor) who interposes and volunteers informa- 
tion upon some matter of law in regard to 
which the judge is doubtful or mistaken, or 
upon a matter of which the court may take 
judicial cognizance. 

When a judge is doubtful or mistaken in 
matter of law, a by-stander may inform the 
court thereof as amicus curie. Counsel in 
court frequently act in this capacity when 
they happen to be in possession of a case 
which the judge has not seen, or does not at 
the moment remember. Holthouse. 

It is also applied to persons who have no 
Tight tu appear in a suit, but are alioweid to 


‘introduce evidence to protect their own in- 


terests. 11 Tex. 699, 701, 702. 


AMIRAL. Fr. In French maritime 


law. Admiral. Ord. de la Mar. liv. 1, tit. 
1,8 & 
AMITA. Lat. A paternal aunt. An 


aunt on the father’s side. Amtia magna. 
A great-aunt on the father’s side. <Azitte 


AMITINUS 


major. A great-great aunt on the father’s 
side. Amita maxima. A great-great-great 
aunt, or a great-great-grandfather’s sister. 
Calvin. 


AMITINUS. Thechild of a brother or 
sister; acousin; one who has the same grand- 
father, but different fatherand mother. Cal- 
vino. 


AMITTERE. Lat. In the civil law. 
To lose. Hence the old Seotch “amitt.” 


AMITTERE CURIAM. To lose the 
court; to be deprived of the privilege of at- 
tending the court. 


AMITTERE LEGEM TERRA. To 
lose the protection afforded by the law of the 
land. 


AMITTERE LIBERAM LEGEM. To 
lose one’s frank-law. A term having the 
same Meaning as amittere leyem terre, (q. V) 
He who lost his law lost the protection ex- 
tended by the law to a freeman, and became 
subject to the same law as thralls or serfs at- 
tached to the land. 


AMNESTY. <A sovereign act of pardon 
and oblivion for past acts, granted by a gov- 
ernment to all persons (or to certain persons) 
who have been guilty of crime or delict, gen- 
evally political offenses,—treason, sedition, 
rebellion,—and often conditioned upon their 
return to obedience and duty within a pre- 
scribed time. 

A declaration of the person or persons who 
have newly acquired or recovered the sov- 
ereign power in a state, by which they par- 
don all persons who composed, supported, or 
obeyed the government which has been over- 
thrown. 

The word “amnesty” properly belongs to 
international law, and is applied to treaties 
of peace following a state of war, and signi- 
fies there the burial in oblivion of the puar- 
ticular cause of strife, so that that shall not 
be again a cause for war between the parties; 
and this signification of “amnesty” is fully 
and poetically expressed in the Indian custom 
of burying the hatchet. And so amnesty is 
applied to rebellions which by their inagni- 
tude are brought within the rules of interna- 
tional law, and in which multitudes of men 
are the subjects of the clemency of the gov- 
ernment. ut in these cases, and in all 
cases, it means only “oblivion,” and never 
expresses orimpliesa grant. 10 Ct. of CL. 407. 


“Amnesty” and “pardon” are very different. 
The former is an act of the sovereign power, the 
object of which is to ¢fface and to cause to be for- 


68 


——SEESE EEE 
Ye ee 
a  , 


AMOUNT OF LOSS 


gotten a crime or misdemeanor; the latter la an 
act of the same authority, which exempts the {n- 
dividual on whom it is bestowed from the punish- 
ment the law inflicts for the crime he has com- 
mitted. Bouvier. 


AMONG. Intermingled with. “A thing 
which is among others is intermingled wilh 
them. Commerce among the states cannot 
stop at the external boundary line of each 
state, but may be introduced into the in- 
terior.” 9 Wheat, 194. 

Where property is directed by will to ve 
distributed among several persons, it cannot 
be all given to one, nor can any of the per- 
sons be wholly excluded from the distribu- 
tion. 6 Munf. 352. 


AMORTIZATION. An alienation of 
lands or tenements in mortmain. The re- 
duction of the property of lands or tenements 
to mortmain. 

In its modern sense, amortization is the 
operation of paying off bonds, stock, or other 
indebtedness of astate or corporation, Sweet. 


AMORTIAE, To alien lands in mort 
main. 


AMOTIO. In the civil law. <A moving 
or taking away. “The slightest amotio is 
sufficient to constitute theft, if the animus 
Surandi be clearly established.” 1 Swint. 
205. 


AMOTION. A putting or turning out}. 
dispossession of lands. Ouster isan amotion 
of possession. 3 Bl. Comm, 199, 208. 

A moving or carrying away; the wrongful 
taking of personal chattels. Archb. Civil 
Pl. Introd. ¢. 2, § 3. 

In corporation law. The act of remov- 
ing an officer, or official representative, of a. 
corporation from his ofice or official station, 
before the end of the term for which he 
was elected or appointed, but without de- 
priving him of membership in the body cor- 
porate. In this last respect the term differs 
from “disfranchisoment,” (or expulsion,). 
which imports the removal of the party from 
the corporation itself, and his deprivation of 
all rights of membership. 


AMOUNT COVERED. In insurance, 
The amount that is insured, and for which 
underwriters are liable for loss under a policy 
of insurance. 


AMOUNT OF LOSS. In insurance, 
The diminution, destruction, or defeat of the 
value of, or of the charge upon, the insured 
subject to the assured, by the direct conse 
quence of the operation of the risk insured 


AMOVEAS MANUS 


against, according to its value in the policy, 
‘or in contribution for loss, so far as its value 
‘ia covered by the insurance. 


AMOVEAS MANUS. Lat. That you 
Temove your hands. After office found, the 
king was entitled to the things forfeited, 
either lands or personal property; the remedy 
for a person aggrieved was by “petition,” or 
“monsiruns de droit,” or “traverses,” to es- 
tablish his superior right. 
issued, quod manus domini regis amovean- 
tur. $ Bl. Comm. 260. 


AMPARO. In Spanish-American law. 
A document issued toa claimant of land asa 
protection to him, until a survey ean be or- 
‘dered, and the title of possession issued by 
gn authorized commissioner. 1 Tex. 790. 


AMPLIATION. In the civil law. A 
deferring of judgment until a cause be further 
examined. Calvin.; Cowell. An order for 
the rehearing of a cxuse on a day appointed, 
for the sake of more ample information. 
Halifax, Anal. b. 3, ¢. 13, n. 32. 

In French law. A duplicate of an ac- 
quiltance or other instrument. A notary’s 
copy of acts passed before him, delivered to 
the parties. 


AMPLIUS. In the oman law. More; 
further; more time. A word which the pre- 
tor pronounced in cases where there was any 
obscurity in a cause, and the judices were 
uncertain whether to condemn or acquit; by 
which the case was deferred to a day named. 
Adam, Bom. Ant. 287, 


AMPUTATION OF RIGHT MAND. 
An ancient punishment for a blow given in 
_ @ superior court; or for assaulting a judge 
sitting in the court. 


AMY. See Aut; Procuein Amy. 


» AN ET JOUR. Fr. 
‘year and a day. 


' AN, JOUR, ET WASTE. In feudal 
| law. Year, day, and waste. A forfeiture of 
_ the lands to the crown incurred by the felony 
_ ofthe tenant, aiter which time the land es- 
| cheats to the lord. Termes de la Ley, 40. 


Year and day; a 


ANACRISIS. Inthe civillaw. An in- 

| yestigalion of truth, interrogation of wit- 

nesses, and inquiry made into any fact, espe- 
cially by torture. 


| ANAGRAPH. 
| commentary, 


A register, inventory, or 


69 


ANCHORAGE 


ANALOGY. In logie. IWentity orsimi- 
larity of proportion. Where there is no prec- 
edent in point, in cases on the same subject, 
lawyers have reeourse te cases on a different 
subject-matter, but governed by the same 
goneral principle. Thisis reasoning by anal- 
ogy. Wharton. 


ANARCHY. Thedestruction of govern- 


‘Thereupon a writ | 


ment; lawlessness; the absenee of all political 
governtnent; by extension, confusion in gov- 
ernment. See 122 Ill. 253. 


ANATHEMA. An ecclesixstical punish- 
mont by whicha person is separated from the 
body of the church, and forbidden all inter- 
course with the members of the same. 


ANATHEMATI2ZE. ‘To pronounce an- 
athema upon; to pronounce accursed by ec- 
clesiastical authority; to excommunicate. 


ANATOCISM. In the civil law. Re- 
peated or doubled interest; compound inter- 
est; usury. Cod. 4, 32, 1, 30. 


ANCESTOR. One who has preceded an- 
other in a direct line of descent; a lineal as- 
cendant. 

A former possessor; the person last seised. 
Termes dela Ley; 2 BI. Comm, 201. 

A deceased person from whom another has 
inherited land. A former possessor, 

The term differs from “predecessor,” in 
that it is applied to a natural person and his 
progenitors, while the latter is applied also to 
a corporation und those who have held effieces 


before those who now Gill them. Co. Litt. 
7806. 


ANCESTRAL. Relating to ancestors, or 
to what hag been done by them; as homage 
ancestrel. 


Derived from ancestors. Ancestral estates 
are such is are transmitted by descent, and 
not by purchase. 4 Kent, Comm. 404. 


ANCHOR. 
galions. 


ANCHOR WATCH. A watch, consist- 
ing of a small number of men, (from one to 
four,) kept constantly on deck while the ves- 
sel is riding at single anchor, to see that the 
stoppers, painters, cables, and buoy-ropes are 
ready for immediate use. 2 Low. 220, 


A measure containing ten 


ANCHOBAGE. In English law. A 
prestation or toll for every anchor cast from 
ashipina port; and sometimes, though there 
be no anchor, Hale, de Jure Mar. pt. 2, 
|c.6. See 1 W. BL 418 et seq.; 4 Term, 262, 


ANCIENT 


ANCIENT. Old; that which has existed 
from an indefinitely early period, or which by 
ace alone liasacquired certain rights or priv- 
ileges accorded in view of long continuance. 


ANCIENT DEMESNE. Manors which 
in the time of William the Conqueror were 
in the hands of the erown, and are so record- 
ed in the Domesday Book. Fitzh. Nat. Brey. 
14, 56, 

Tenure in ancient demesne may be pleaded 
in abatement to an action of ejectment. 2 
Burr. 1046, 

Also a species of copyhold, which differs, 
however, from common copyholds in certain 
privileges, but yet must he conveyed by sur- 
render, according to the custom of the man- 
or. There are three sorts: (1) Where the 
lands are held freely by the king’s grant; (2) 
customury freeholds, which are held of a 
manor in ancient demesne, but not at the 
lord’s will, although they are conveyed by 
surrender, or deed and admittance; (3) lands 
held by copy of court-roll at the lord's will, 
denominated copyholds of base tenure. 


ANCIENT HOUSE. One which has 
’ stood long enough to acquire an easement 
of support against the adjoining land or build- 
ing. 5 Kent, Comm. 437; 2 Washb. Real 
Prep. 74, 76. 

In England this term is applied to houses 
or buildings erected before the time of legal 
memory, (Cooke, Incl. Acts, 35, 109, ) that is, 
before the reign of Richard I., although prae- 
tically any house isan ancient messuage if it 
was erected before the time of living mem- 
ory, and its origin cannot be proved to be 
modern. 


ANCIENT LIGHTS. Lights or win- 
dows in a house, which have been used in 
their present state, without molestation or 
interruption, for twenty years, and up- 
wards, To these the owner of the house has 
a right by prescription or occupancy, so that 
they cannot be obstructed or closed by the 
owner of the adjoining land which they may 
overlook. 


ANCIENT READINGS. Readings or 
lectures upon the ancient english statutes, 
formerly regarded as of great authority in 
law. Litt. § 481; Co. Litt. 280. 


ANCIENT RENT. The rent reserved at 
the time the lease was made, if the building 
was not then under lease. 2 Vern. 542, 


ANCIENT SERJEANT. In English 
law. The eldest of the queen’s serjeants. 


70 


ANECIUS 


ANCIENT WALL. A wall built to be 
used, and in fact used, as a party-wall, for 
more than twenty years, hy the express per- 
mission and continuous acquiescence of the 
owners of the land on which it stands. 4 
Duer, 53, 63. 


ANCIENT WRITINGS. Wills, deeds, 
or other documents upwards of thirty years 
old. These are presumed tv be genuine with- 
out express proof, when coming from the 
proper custody. 


ANCIENTS. In English law. Gentle- 
men of the inns of court and chancery. In 
Gray's Inn the society consists of benchers, 
ancients, barristers, and students under the 
bar; and here the ancients are of the oldest 
barristers. In the Middle Temple, those who 
had passed their readings used to be termed 
“ancients.” The Inns of Chancery consist 
of ancients and students or clerks; from the 
ancients a principal or treasurer is chosen 
yearly. Wharton. 


ANCIENTY. Eldership; seniority. 
Used in the statute of Ireland, 14 Hen. VII1. 
Cowell. 


ANCILLARY. Aiding; auxiliary; at 
tendant upon; subordinate; a proceeding at- 
tendant upon or which aids another proceed- 
ing considered as principal. 


ANCILLARY ADMINISTRATION. 
When a decedent leaves property tn a foreign 
state, (a state other than that of his domicile, ) 
administration may be granted in such for- 
eign state for the purpose of collecting the 
assets and paying the debts there, and bring- 
ing the residue into the general administra- 
tion. This is called “ancillary” (auxiliary, 
subordinate) administration. 


ANCIPITIS USUS. Lat. In interna- 
tional law. Ofdoubtful use; the use of which 
is doubtful; that may be used for a civil or 
peaceful, as weil as military or warlike, pur- 
pose, Gro. de Jure B. lib. 8, c. 1, § 5, subd. 3; 
1 Kent, Comm. 140. 


ANDROCHIA. In old English law. A 
dairy-woman. Fleta, lib, 2, c 87. 


ANDROGYNUS. An hermaphrodite. 


ANDROLEPSY. The taking by one na- 
tion of the citizens or subjects of another, in 
order to compel the latter to do justice to the 
former. Wolffius, § 1164; Moll. de Jure Mar. 
26. 


AWECIUS. L. Lat. Spelled also wenecius, 
eniiius, eneas, eneyus. The eldest-born; the 


ANGARIA 


first-born; senior, ae contrasted with the 
puis-ne, (younger.) Spelman. 


ANGARIA, A ferm used in the Roman 
law to denote a forced or compulsory service 
exacted by thu government for public pur- 
posea; as a foreed rendition of labor or goods 
for the public service. See Dig. 50, 4, 18, 4, 

In maritime law. <A forced service, 
{onus,) imposed on a vessel for public pur- 
poses; an impressment of a vessel. Locc. de 
Jure Mar. lib. 1, c. 5, $$ 1-6. 

In feudallaw. Any troublesome or vex- 
atious personal service paid by the tenant to 
his lord. Speiman. 


ANGEL. An ancient English coin, of 
the value of ten shillings sterling. Jacob. 


ANGILD. In Saxon law. The single 
value of a man or other thing; asingle were- 
gild; the compensation of a thing according 
to its single value or estimation. Spelman, 
The double gild or compensation was cailed 
“twigtid,” the triple, “trigiid,” ete. Id. 


ANGLESCHERIA. Inold Engtisi law. 
Englishery; the fact of being an English- 
man, 


Anglis jura in omni casu libertatis 
dant favorem. The laws of England in 
every ease of liberty are favorable, (favor 
liberty in all cases.) Fortes. c. 42. 


ANGLICE. In English. A term for- 
merly used in pleading when a thing is de- 
stribed both in Latin and English, inserted 
immediately after the Latin and as an intro- 
duction of the English translation. 


ANGLO -INDIAN. An Englishman 
domiciled in the Indian territory of tha Brit- 
ish crown. 


ANGYLDE. In Saxon law. The rate 
fixed by law at which certain injuries to per- 
son or property were to be paid for; in injuries 
to the person, it seems to be equivalent to 
the “were,” 7. ¢, the price at which every 
man was valued. It seems also to have been 
the fixed price at which cattle and other goods 
were received as curreucy, and to have been 
much higher than the market price, or ceap- 
gid. Wiarton. 


ANHLOTE. In old English law. A 
single tribute or tax, paid according to the 
custom of the country as scot and lot. 


ANIENS, or ANIENT. Null, void, of 


no force or effect. Fitzh. Nat. Brey. 214. 


71 ANIMUS 
AWIMAL. <Any animate being which is 
endowed with the power of veluntary motion. 
In the languages of the law the term includes 
all living creatures not human. 
Domiie are those which have been ‘tamed 
by man; domestic. 
Pere nature are those which still retain 
their wild nature. 
Mansuete nature are those gentle or tame 
by nature, such as sheep and cows. 


Animalia fera, si facta sint mansueta 
ot ex consuetudine eunt et redeunt, vo- 
lant et revolant, ut cervi, cygni, ete., co 
usque nostra sunt, et ita intelliguntur 
quamdin habuerunt animum revertendi, 
Wild animals, if they be made tame, and are 
accustomed to go out and return, fly away 
and fly back, as stags, swans, etc., are con- 
sidered to belong to us so long as they have 
the intention of returning lous. 7 Coke, 16, 


ANIMALS OF A BASH NATURE, 
Animals in which a right of property may be 
acquired by reclaiming them from wildness, 
but which, at common Jaw, by reason of their 
base nature, are not regarded as possible sub- 
jects of a larceny. 3 Inst. 109; 1 Hale, P. 
C. 511, 512. 


ANIMO. Lat. 


With intention, disposi- 
tion, design, will. Quo enimo, with what 
intention. <Animo cancellandi, with inten- 
tion to cancel. 1 Pow. Dey. 608. Purandi, 
with intention to steal. 4 Bl. Comm, 280; 
1 Kent, Comm, 183. Lwerandi, with inten- 
tion to gain or profit, 3 Kent, Comm, 357. 
Manendi, withintentiontoremain, 1 Kent, 
Comm. 76. Morandt, with intention tostay, 
or delay. Hepublicandi, with intention to 
republish. 1 Pow, Dev. 609. Reverteridi, 
with intention to return. 2 Bl. Comm, 392. 
Rerocandi, with intention to revoke. 1 Pow 
Dev. 595. Testendi, with intention to make 
a will. See Animus and the titles which 
follow it. 


AWIMO ET CORPORE. By the mind, 
and by the body; by the intention and by the 
physical act. Dig. 50, 17, 153; Id. 41, 2, 
3, 1; Fleta, lib. 5, c. 5, §§ 9, 10. 


ANIMO FELONICO. With felonious 
intent. Hob. 134. 


ANIMUS. Lat. Mind; intention; dispo- 
sition; design; will. Antmo, (g. v.;) with 
the intention or design. ‘These terms are 
derived from the civil law. 


Animus ad se omne jus ducit. 
the intention that all law applies. 
ways regards the intention. 


It is ta 
Law al- 


ANIMUS CANCELLANDI 72 


ANIMUS CANCELLANDI. The in- 
fention of destroying or canceling, (applied 
to wills.) 


ANIMUS CAPIENDI. The intention 
to takeor capture. 4 C. Rob. Adm. 126, 155. 


ANIMUS DEDICANDI. 
of donating or dedicating. 


ANIMUS DEFAMANDI. The inten- 
tion of defaming. The phrase expresses the 
malicious intent which is essential in every 
case of verbal injury to render it the subject 
of an action for libel or slander. 


ANIMUS DERELINQUENDI. The 
intention of abandoning. 4 ©. Rob. Adm. 
216. 


ANIMUS DIFFERENDI. The inten- 
tion of obtaining delay. 


ANIMUS DONANDI. The intention 
of giving. Expressive of the intent to give 
which is necessary to constitute a gift. 


ANIMUS ET FACTUS. Intention and 
act; will and deed. Used to denote those 
acts which become effective only when ac- 
companied by a particular intention. 


ANIMUS FURANDI. 
staal, 


The intention 


The intention to 


Animus hominis est anima scripti. 
The intention of the party is the soul of the 
instrument. $ Bulst.67; Pitm. Prin. & Sur. 
26. In order to give life or effect to an in- 
strument, it is essential to look to the inten- 
tion of the individual who executed it. 


ANIMUS LUCRANDI. 
to make a gain or profit. 


ANIMUS MANENDI. The intention 
of remaining; intention to establish a perma- 
nent residence. 1 Kent, Comm. 76. This is 
the point to be settled in determining the 
domicile or residence of a party. Id. 77. 


ANIMUS MORANDI, The intention 
to remain, or to delay. 


ANIMUS POSSIDENDI. 
tion of possessing. 


ANIMUS QUO. Thelntent with which. 


ANIMUS RECIPIENDI. The intention 
of receiving. 


ANIMUS RECUPERANDI. The in- 
tention of recovering. Locc. de Jure Mar. 
lib. 2, c. 4, § 10. 


ANIMUS REPUBLICANDI. 
tention to republish. 


The intention 


The inten- 


The in- 


ANNEXATION 


ANIMUS RESTITUENDI. The inten. 
tion of restoring. Fleta, lib. 8, c. 2, §3. 


ANIMUS REVERTENDI. The inten- 
tion of returning. A man retains his domi- 
cile if he leaves it antmo vevertendt. 3 Rawle, 
312; 4 Bl. Comm. 225; 2 Russ. Crimes, 18; 
Poph. 42, 52; 4 Coke, 40. 

Also, a term employed in the civil law, in 
expressing the rule of ownership in tamed 
animals. 


ANIMUS REVOCANDI. The inten 
tlon to revoke. 


ANIMUS TESTANDI. An intention 
to make a testament or will. D 


ANEER. 
lons. 


ANN. In Scotch law. Half a year's 
stipend, over and above what is owing for 
the incumbency, due to a minister’s relict, or 
child, or next of kin, after his decease. 
Whishaw. 


A measure containing ten gal- 


ANNA. In East Indian coinage, a piece 
of money, the sixteenth part of a rupee. 


ANNALES. Lat. Annuals; a title for- 
merly given to the Year Books. 

In old records. Yearlings; cattle of the 
first year. Cowell. 


ANNALY. 
to convey. 


ANNATES. Inecclesiasticallaw. First 
fruits paid out of spiritual benefices to the 
pope, so called because the value of one year’s 
profit was taken as their rate. 


ANNEX. To add to; to unite; to attach 
one thing permanently to another. ‘The 
word expresses the idea of joining a smaller 
or subordinate thing with another, larger, or 
of higher importance. 

In the law relating to fixtures, the expres- 
sion ‘annexed to the freehold” means fast- 
ened to or connected with it; mere juxtapo- 
sition, or the laying of an object, however 
heayy, on the freehold, does not amount to 
annexation. 14 Cal. 64, 


ANNEXATION. The act of attaching, 
adding, joining, or uniting one thing to an-— 
other; generally spoken of the connection of 
a smaller or subordinate thing with a larger 
or principal thing. The attaching an illus- 
trative or auxiliary document to a deposi- 
tion, pleading, deed, etc., is cailed “annex- 
ing” it. So the incorporation of newly-ac- 
quired territory into the national domain, as 
an integral part thereof, is called “annexa- 


In Scotch law. To alienate; 


SEE, ESE ee 
= = 


ANNEXATION 


tion,” as in the case of the addition of Texas 
to the United States. 

In the law relating to fixtures: Actual 
enneation includes every movement by 
Which achattel can be joined or united to the 
freehold, Constructive annexation is the 
union of such things as have been holden 
parcel of the realty, but which are not actu- 
ally annexed, fixed, or fastened to the free- 
hold. Shep. Touch. 469; Amos & F, Fixt. 2. 

In Seotch law. The union of lands to 
the crown, and declaring them inalienable. 
Also the appropriation of the church-lands 
by thecrown, and the union of lands lying at 


a distance from the parish chureh to which 


they belong, to the church: of another parish 
to which they are contigaous, 


ANNI ET THMPORA. Lat. Years 
and terms. An old title of the Year Books. 


ANNI NUBILES. A woman's mar- 
riageable years. ‘The ageat which a girl be- 
comes by law ft for marriage; the age of 
twelve. 


ANNICULUS. 
vin. 


A child a year old. Cal- 


Anniculus trecentesimo sexagesimo- 
quinto die dicitur, incipiente plane non 
exacto die, quia annum civiliter non 
ad momenta temporum sed ad dies 
Humeramur. We calla child «4 year old on 
the three hundred and sixty-fitth day, when 
the day is fairly begun but not ended, be- 
tause we calculate the civil year not by mo- 
ments, but by days. Dig. 50, 16, 184; Id, 
162; Calvin. 


ANNIENTED. Mado null, abrogated, 
frustrated, or brought to nothing, Litt. ¢. 
8, § 741. 


ANNIVERSARY. An annual day, in 
ald ecclesiastica) law, set apart in memory of 
adeceased person. Also ealled “year day” 
or “mind day.” Spelman. 


ANNO DOMINI. In ithe year of the 
Lord. Commonly abbreviated A. D. ‘The 
computation of time, according to the Chris- 
tian era, dales from the birth of Christ. 


ANNONA, Grain; food. An old En- 
glish and civil law term to denote a yearly 
contribution by one person to the support of 
another. 


ANNONA CIVILES. A species of 
yearly rents issuing out of certain lands, and 
payable te certain monasterics. 


73 ANNUITIES OF TIENDS 


ANNOTATIO. In the civil law. The 
8ign-manual of the emperor; a reseript of 
the emperor, signed with his own hand. It 
ig distinguished both from a rescript and 
praginatic sanction, in Cod. 4, 59, 1. 


ANNOTATION. A remark, note, or 
commentary on some passage of a book, in- 
tended to illustrate ifs meaning. Webster. 

In the civil jaw. An imperial reseript 
signed by the emperor, The answers of the 
prince to questions put to him by private per- 
sons respecting some doubtful point of law. 

Summoning an absentee. Diy. 1, 5. 

The designation of a place of deportation. 
Dig. 82, 1, 8. 


Annua nee debitum judex non sepa- 
rat ipsum. A judge (or court) does not di- 
vide annuities nor debt. § Coke, 52; 1 Salk. 
36, 65. Debt and annuity cannot be divided 
or apportioned by a court. 


ANNUA PENSIONE. An ancient writ 
to provide the king’s chaplain, if he had no 
preferment,with a pension. Reg. Orig. 165, 
307. 

ANNUAL ASSAY. An annual trial of 
the gold and silver coins of the United States, 
to ascertain whether the standard fineness 
and weight of the coinage is maintained. 
See Rev. St. U. 8. § 3547. 


ANNUAL INCOME. Annual income 
ig annual receipts from property. Income 
means that which comes in or is received from 
any business, or investment of capital, with- 
out reference to the outgoing expenditures. 
4 Abb. N.C. 400. 


ANNUAL PENSION. 
A yearly profit or rent. 


In Scotch law. 


ANNUALLY. The meaning of this 
term, as applied to interest, is not an undor- 
taking te pay interest at the end of one year 
only, but to pay interest at the end of each 
anil every year during a period of time, either 
fixed or contingent. OGray,164. See, also, 
19S. 6. 89; 16 Ohio St. 348. 


ANNUITANT. The recipient of an an- 
nuity; one who is entitled to an annuity. 


ANNUITIES OF TIENDS. InScotch 
law; annuities of tithes; 10s. out of the boll 
of tiend wheat, 8s. cut of the boll of bear, 
less out of the boll of rye, oats, and peas, al- 
Jowed to the crown yearly of the tiends not 
paid to the bishops, or set apart for other 
plous uses. 


ANNUITY 


ANNUITY. A yearly sum stipulated to 
be paid to another in fee, or for life, or years, 
ani chargeable only on the person of the 
grantor. Co. Litt. 1446. 


An annuity is different from arent-charge, 


with which it is sometimes confounded, the 
annuity being chargeable on the person 
merely, and so far personalty; while a rent- 
charge is something reserved out of realty, or 
fixed as a burden upon an estate in land. 2 
Bl. Comm. 40; Rolle, Abr. 226; 10 Watts, 
127. 

The contract of annuity is that by which 
one party delivers to another a sum of mon- 
ey, and agrees not to reclaim it so long as the 
receiver pays the rent agreed upon. This 
annuity may be either perpetual or for life. 
Civil Code La, arts. 2798, 2794. 

The name of an action, now disused, (L. 
Lat. breve de annuo redditu,) which lay for 
the recovery of anannuity. Reg. Orig. 1580; 
Bract. fol. 2038; 1 Tidd, Pr. 3. 


ANNUITY-TAX, An impost levied an- 
nually in Scotland for the maintenance of the 
ministers of religion. 


ANNUL. To cancel; make void; destroy. 
To annul a judgment or judicial proceeding 
is to deprive it of all force and operation, 
either ab initie or prospectively as to future 
transactions. 


ANNULUS. Lat. In old English law. 
A ring; the ring ofadoor. Per huspam vel 
annulum hostii extertoris; by the hasp or 
ring of the outer door. Fleta, lib. 3, c. 15, 
§ 5. 


ANNULUS ET BACULUS. (Lat. ring 
and staff.) The investiture of a bishop was 
per annulum et baculum, by the prince’s 
delivering to the prelate a ring and pastoral 
staff, orerozier, 1 BI. Comm. 3878; Spelman. 


ANNUS. Lat. In civil and old English 
Jaw. <A year; the period of three hundred 


and sixty-livedays. Dig. 40, 7, 4,5; Calvin.; | 


Bract. fol. 3590. 


ANNUS DELIBERANDI. In Scotch 
law. A year of deliberating; a year to de- 
liberate. 
to deliberate whether he will enter and rep- 
resent his ancestor. It commences on the 
death of the ancestor, unless in the case of a 
posthumous heir, when the year runs from 
his birth. Bell. 


ANNUS, DIES, ET VASTUM. In old 
English law. Year, day, and waste. See 
Year, Day, AND WASTE. 


The year allowed by law to the heir | 


74 


| (within the year of mourning.) Code 5, 9, 


ANSWER 


Annus est mora motus quo suum 
planeta pervolvat circulum, A year is 
the duration of the motion by which a planet 
revolves through its orbit. Dig. 40, 7, 4, 5; 
Calvin.; Bract. 3598. 


ANNUS ET DIES. A year and a day. 


Annus inceptus pro completo habe- 
tur. A year begun is held as completed. 
Tray. Lat. Max. 45. 


ANNUS LUCTUS. The year of mourn- 
ing. It was a rule among the Romans, and 
also the Danes and Saxons, that widows 
should not marry infra annum luctis, 


2; 1 Bl. Comm. 457. 


ANNUS UTILIS. A year made up of 
available or serviceable days. Brissonius; 
Calvin. In the plural, anni wittles signifies 
the years during which a right can be exer- 
cised or a prescription grow. 


ANNUUS REDITUS, A yearly rent; 
annuity. 2 Bl. Comm. 41; Reg. Orig. 158d, 


ANON., AN., A. Abbreviation for 
anonymous, 


ANONYMOUS. Nameless; wanting a 
Nameornames. <A publication, withholding 
the name of the author, is said to be anony- 
mous. Cases are sometimes reported anony- 
mously, z. e., without giving the names of 
the parties. Abbreviated to “Anon.” 


ANOYSANCE. Annoyance; nuisance, 
Cowell; Kelham. 


ANSEL, ANSUL, or AUNCEL. In 
old Englishlaw. Anancient mode of weigh- 
ing by hanging scales or hooks at either end 
of a beam or staff, which, being lifted with 
one’s finger or hand by the middle, showed 
the equality or difference between the weight 
at one end and the thing weighed at the 
other. Termes dela Ley, 66. 


ANSWER. In pleading. Any plead- 
ing setting up matters of fact by way of de- 
fense. In chancery pleading, the term de- 
notes a defense in writing, made by a defend- 
ant to the allegations contained in a bill or 
information filed by the plaintiff against him. 

In pleading, under the Codes of Civil Pro- 
cedure, the answer is the formal written 
statement made by a defendant setting forth 
the grounds of his defense; corresponding to 
what, in actions under the common-law prac. 
tice, is called the “plea.” 

In Massachusetts, the term denotes the 
atatement of the matter intended to be relied 


" ANSWER 

| by the defendant in avoidance of the 
uintiff’s action, taking the place of special 
as in bar, and the general issue, except in 
aland mixed actions. Pub. St. Mass. 1882, 
p. 1287. j 

In matrimonial suits in the (English) pro- 
divorce, and admiralty division, an an- 
er is the pleading by which the respond- 
uts forward his defense to the petition. 
Browne, Div. 223, 

Under the old admiralty practice in Eng- 
land, the defendant’s first pleading was called 
a ‘answer.” Williams & B. Adm. Jur. 
In practice. <A reply to interrogatories; 
an allidavit in answer tointerrogatories. The 
declaration of a fact by a witness after a 
question has been put, asking for it. 

_ As averb, the word denotes an assumption 
of liability, as to “answer” for the debt or 
default of another. 


ANTAPOCHA. In the Romanlaw. A 
transcript or counterpart of the instrument 
called “apocha,” signed by the debtor and 
delivered to the creditor. Calvin. 


ANTE. Lat. Before. Usually employed 
in old pleadings as expressive of time, as pr@ 
(before} was of place, and coram (before) of 
person. Townsh. Pl. 22. 

Occurring in a report or a text-book, it is 
used to refer the reader to a previous part of 
the book. 


ANTE EXHIBITIONEM BILLA. 
Before the exhibition of the bill. Before suit 
begun. 


ANTE-FACTUM or ANTE-GESTUM. 
Done before. A Roman Jaw term for a pre- 
vious act, or thing done before. 


ANTE LITEM MOTAM. Before suit 
brought; before controversy instituted. 


ANTECESSOR. An ancestor, (g. v.) 


ANTEDATE. To date an instrument as 
of a time before the time it was written. 


ANTEJURAMENTUM. In Saxonlaw. 
A preliminary or preparatory oath, (called 
also “prajurumentum,” and “juramentum 
calumnie,”) which both the accuser and ae- 
cused were required to make before any trial 
or purgation; the accuser swearing that he 
would prosecute the criminal, and the ac- 


cent of the crime with which he was charged. 
Whishaw. 


75 


—— a 


cused making oath on the very cay that he > 
was to undergo the ordeal that he was inno- | 


ANTICHRESIS 


ANTENATUS. Lat. From ante and ne- 
tus. Born before. A person born before 
another person or before a particular event. 
The term is particularly applied to one born 
in a country before a revolution, change of 
government or dynasty, or other political 
event, such that the question of his rights, 
status, or allegiance will depend upon the 
date of his birth with reference to such event. 
In England, the term commenly denotes one 
born before the act of union with Scotland; in 
America, one born before the declaration of 
independence. Its opposite is postnatius, one 
born after the event. 


ANTENUPTIAL. Made or done before 
amarriage. Antentptial settlements are set- 
tlements of property upon the wife, or up- 
on her and her children, made before and in 
contemplation of the marriage. 


ANTI MANIFESTO. A term used in 
international law to denote a proclamation or 
manifesto published by one of two belliger- 
ent powers, alleging reasons why the war is 
defensive on its part. 


ANTICHRESIS. In the civillaw. A 
species of mortgage, or pledge of inmovables. 
An agreement by which the debtor gives to 
the creditor the income from the property 
which he hag pledged, in lieu of the interest 
on his debt. Guyot, Repert. 

A debtor may give as security for his debt 
any immovable which belongs to him, the 
creditor having the right to enjoy the use of 
it on account of the interest due, or of the 
capital if there is no interest due; this is 
ealled “antiecresis.” Civil Code Mex. art. 
1927. 

By the law of Lonisiana, there are two 
kinds of pledges,—the pawn and the anti- 
cbresis. A pawn relates to movables, and 
the antichresis to immovables. The anti- 
chresis must be reduced to writing; and the 
creditor thereby acquires the right to the 
fruits, ete., of the immovables, deducting 
yearly their proceeds from the interest, in 
the first place, and atterwards from the prin- 
cipal of his debt. He is bound to pay taxes 
on the property, and keep it in repair, unless 
the contrary is agreed. The creditor does 
not become the proprietor of the property Ly 
failure to pay at the agreed time, and any 
clause to that effect is void. He can only 
aie the debtor, and obtain sentence for sala 
of the property. The possession of the prop- 
erty is, however, by the contract, transferred 
to the creditor. 11 Pet. 351, 


ANTICIPATION 


ANTICIPATION. The act of doing or 
taking a thing before its proper time. 

In conveyancing, anticipation is the act of 
assigning, charging, or otherwise dealing 
with income before it becomes due. 

In patent law, a person is said to have been 
anticipated when he patents a contrivance 
already known within the limits of the coun- 
try granting the patent. 


ANTIGRAPHUS. In Roman law. An 
officer whose duty it was to take care of tax 
money. <A comptroller. 


ANTIGRAPHY. <A copy or counterpart 
of a deed. 


ANTINOMIA. In Roman law. A real 
or apparent contradiction or inconsistency in 
thelaws. Merl. Repert. Contlicting laws or 
provisions of law; inconsistent or conflicting 
decisions or cases. 


ANTINOMY. A term used in logic and 
law to denote a real or apparent inconsisten- 
ey or conflict between two authorities or 
propositions; same as antinomia, (q. v.) 


ANTIQUA CUSTUMA. In English 
law. Ancient custom. An export duty on 
wool, wool-felts, and leather, imposed during 
the reign of Edw. I. It was so called by way 
of distinction from an increased duty on the 
same articles, payable by foreign merchants, 
which was imposed at a later period of the 
aame reign and was called “custuma nova.” 
1 Bi. Comm, 314. 


ANTIQUA STATUTA. Also called 
“Veltera Statuta.” Unglish statutes from 
the time of Richard I. to Edward III. 1 
Reeve, Eng. Law, 227. 


ANTIQUARE. In Roman law. To re- 
store a former law or practice; to reject or 
vote against a new law; to prefer the old 
law. Those who voted against a proposed 
law wrote on their ballots the letter “A,” 
the initial of antiguo, 1 am for the old law. 
Calvin. 


ANTIQUUM DOMINICUM. 
English law. Ancient demesne. 


ANTITHETARIUS. In old English 
law. A man who endeavors to discharge 
himself of the crime of which he is accused, 
by retorting the charge on the accuser. He 
differs from an approver in this: that the lat- 
ter does not charge the accuser, but others. 
Jacob. 


ANTRUSTIO. 
confidential vassal, 


In old 


In early feudal law. A 
A term applied to the 


76 : APOCHA 


followers or dependents of the anclent Ger- 
man chiefs, and of the kings and counts of the 
Franks. Burrill. 


ANUELS LIVRES. 
Books. Kelham. 


APANAGE. In old French law. A pro- 
vision of lands or feudal superiorities as- 
signed by the kings of France for the main- 
tenance of their younger sons. An allow. 
ance assigned toa prince of the reigning house 
for his proper maintenance out of the public 
treasury. 1 Hallam, Mid. Ages, pp. ii, 88; 
Wharton. 


APARTMENT. A part of a house oe- 
cupied by a person, while the rest is occupied 
by another, or others. As to the meaning 
of this term, see 7 Man. & G. 95; 6 Mod. 214; 
42 Ala. 356; 10 Pick. 293; 10 Maas. 190; 38 
Cal. 137. 


APATISATIO. 
pact. Du Cange, 


APERTA BREVIA. Open, 
writs. 


APERTUM FACTUM. An overt act 


APERTURA TESTAMENTI. In the 
civillaw. A form of proving a will, by the 
witnesses acknowledging before a magistrate 
their having sealed it. 


L. Fr. The Year 


An agreement or com- 


unsealed 


APEX. The summit or highest point of 
anything; the top; e. g., in mining law, 
“apex of a vein.” See 26 N. W. Rep. 887, 


APEX JURIS. The summit of the law; 
a legal subtlety; a nice or cunning point of 
law; close technicality; a rule of law carried 
to an extreme point, either of severity or re- 
finement. 


Apices juris non sunt jura, [jus.] Ex- 
tremities, or mere subtleties of law, are not 
rules of law, [are not law.] Co. Litt. 3040; 
10 Coke, 126; Wing. Max. 19, max. 14; 
room, Max. 188. 


APICES LITIGANDI. Extremely fine 
points, or subtleties of litigation. Nearly 
equivalent to the modern phrase “sharp prac- 
tice.” “It is unconscionable in a defendant 
to take advantage of the apices litigandi, to 
turn a plaintiff around and make him pay 
costs when his demand is just.” Per Lord 
Mansfield, in 3 Burr. 1243. 


APOCHA. Lat. In the civil law. A 
writing acknowledging payments; acquit. 
tance. It differs from acceptilation in this: 
that acceptilation imports a complete dis- 


APOCH 2 ONERATORIA 


charge of the former obligation whether pay- 
ment be made or not; apochka, discharge only 
upon payment being made. Calvin, 


APOCH# ONERATORIA. 
commercial law. Bills of lading. 


In old 


APOCRISARIUS. In ecclesiastical law. 
One who answers for another. An officer 
Whose duty was to carry to the emperor mes- 
sages relating to ecclesiastical matters, and 
to take back his answer to the petitioners. 
An officer who gave advice on questions of 
eeclesiastical law. An ambassador or legate 
ofa pope or bishop. Spelman. 


APOCRISARIUS CANCELLARIUS. 
In the civil law. An officer who took charge 
of the royal seal and signed royal dispatches, 


APOGRAPHIA. A civil law term sig- 
nifying an inventory or enumeration of things 
In one’s possession. Calvin. 


APOPLEXY. In medical jurisprudence. 
Tho failure of consciousness and suspension 
of yoluntary motion from suspension of the 
functions of the cerebrum. 


APOSTACY. InEnglishlaw. The total 
Tenunciation of Christianity, by embracing 
either a false religion or no religion at all, 
This offense can only take place in such as 
have ones professed the Christian religion. 
4 Bi. Comm. 43; 4 Steph. Comm. 231. 


APOSTATA, In civil and old English 
law, Anapostate; a deserter from the faith; 
one who has renounced the Christian faith, 
Uod. 1, 7; Reg. Orig. 716. 


APOSTATA CAPIENDO. An obsoleta 
English writ which issued against an apos- 
tate, or one who had violated the rules of his 
religious order. It was addressed to the 
sieriff, and commanded him to deliver the 
defendant into the custody of the abbot or 
prior. Reg. Orig. 71, 267; Jacob; Wharton. 


APOSTILLE, Appostille. L. Fr. An 
addition; a marginal note or observation. 
Kelham. 


APOSTLES. In English admiralty prac- 
tice. A term borrowed from the civil law, 
denoting brief dismissory letters granted toa 
party who appeals from an inferior to a su- 
perior court, embodying a statement of the 
case and a declaration that the record will be 
transmitted. 

This term is still sometimes applied in the 
admiralty courts of the United States to the 
papers sent up or transmitted on appeals. 


77 


APPARENT EASEMENT 


APOSTOL!. In the civil law. Certifi- 
cates of the inferior judge from whom a 
eause is removed, directed to the superior. 
Dig. 49,6. See APosTLes. 


APOSTOLUS, A messenger; an ambas. 
sador, legate, or nuncio, Spelman, 


APOTHECA. In the civil law. A re. 
pository; a place of deposit, aa of wine, oil, 
books, ele. Calvin. 


APOTHECARY. Any person who keeps 
a shop or building where medicines are coui- 
pounded or prepared according io prescrip- 
tions of physicians, or where medicines are 
sold. Act Cong, July 13, 1866, § 9; 14 St. at 
Large, 119, 

The term “druggist” properly means one 
whose eccupation is to buy and sell drugs 
without compounding or preparing them. 
The term therefore has a much more limited 
ani restricted meaning than the word “apoth- 
ecary,” and there ia little difficulty in con- 
eluding that the term “druggist” may be ap- 
plied in a technical sense to persons who buy 
and sell drugs. 28 La, Ann, 767. 


APPARATOR, A furnisher or provider. 
Formerly the sheriff, in England, had charge 
of certain county affairs and disbursements, 
in which capacity he was called “apparator 
comitatus,” and received therefor a consider- 
able emolument. Cowell. 


APPARENT, That which is obvious, 
evident, or manifest; what appears, or hag 
been made manifest. In respect to facts 
involved in an appeal or writ of error, that 
which is stated in the record. 


APPARENT DANGER, as used with 
reference to the doctrine of self-defense in 
homicide, means such overt actual demon- 
stration, by conduct and acts, of a design to 
take life or do some great personal injury, as 
would make the killing apparently necessary 
to self-presurvation. 44 Miss. 762. 


APPARENT DEFECTS, ina thing sold, 
are those which can be discovered by simple 
inspection, Code La, art. 2497. 


APPARENT EASEMENT. Apparent 
or continuous easements are those depending 
upon some artificial structure upon, or nat- 
ural formation of, the servient tenement, ob- 
yious and permanent, which constitutes the 
easement or is the means of enjoying it; as 
the bed of a running stream, an overhang- 
ing roof, a pipe fer conveying water, a 
drain, or a sewer. Non-apparent or non- 


| continuous easements are such that have na 


APPARENT HEIR 


means specially constructed or appropriated 
to their enjoyment, and that are enjoyed at 
intervals, leaving between these intervals no 
visible sign of their existence, such as a right 
of way, or right of drawing a seine upon the 
shore. 18 N. J. Eq. 262. 


APPARENT HEIR. In English law. 
One whose right of inheritance is indefeasi- 
ble, provided he outlive the ancestor. 2 Bl. 
Comm, 208. 

In Scotch law. He is the person to whom 
the succession has actually opened. 
called until his regular entry on the lands 
by service or infeftment on a precept of clare 
constat, 


APPARENT MATURITY. The ap- 
parent maturity of a negotiable instrument 
payable at a particular time is the day on 
which, by its terms, it becomes due, or, when 
that is a holiday, the next business day. Civil 
Code Cal. § 3132. 


APPARITIO. Inold practice. Appear- 
ance; anappearance. Apparitio in judicio, 
un appearance in court. Bract. fol. 344. 
Post apparitionem, afterappearance. Fleta, 
lib. 6, ¢. 10, § 25. 


APPARITOR. An officer or messenger 
employed to serve the process of the spir- 
itual courts in England and summon offend- 
ers, Cowell. 

In the civil law. An officer who waited 
upon a magistrate or superior officer, and 
executed his commands. COalvin.; Cod. 12, 
53-57. 

APPARLEMENT. In old English law. 
Resemblance; likelihood; as apparlement of 
war. St. 2 Rich. 11. st. 1, ec. 6; Cowell. 


APPARURA. In old English law the 
apparura were furniture, implements, tackle, 
or apparel. Caruearum apparura, plow- 
tackle. Cowell. 


APPEAL, Incivil practice. Thecom- 
plaint to a superior court of an injustice 
done or error committed by an inferior one, 


whose judgment or decision the court above | 


is called upon to correct or reverse. 

The removal of a cause from a court of 
inferior to one of superior jurisdiction, for 
the purpose of obtaining a review and re- 
trial. 8 Dall. 321; 7 Cranch, 110; 10 Pet. 
205; 14 Mass. 414; 1 Serg. & KR. 78; 1 Bin. 
219; 3 Bin. 48. 


He isso |; 


78 


1 


| 


| 


APPEARANCE 


the facts, as well as the law, to a review and re- 
visal; but a writ of error Is of common law origin, 
and it removes nothing for re-examination but the 
law. 8 Dall 821; 7 Cranch, 108. 

But appeal is sometimes used to denote the nat 
ure of appellate jurisdiction, as distinguished from 
original jurisdiction, without any particular re- 
gard to the mode by which a cause is transmitted 
to a superior jurisdiction. 1 Gall. 5, 12. 


In criminal practice. A formal accusa- 
tion made by one private person against an- 


| other of having committed’ some heinous 


crime. 4 Bl. Comm. 312. 

Appeal was also the name given to the 
proceeding in English law where a person, 
indicted of treason or felony, and arraigned 


| for the same, confessed the fact before plea 


pleaded, and appealed, or accused others, his 
accoinplices in the same crime, in order to 
obtain his pardou. In this case he was called 
an “approyer” or “prover,” and the party 
appealed or accused, the “appellee.” 4 BI. 
Comm. 330. 

In legislation. The act by which a mem- 
ber of a legislative body who questions the 
correctness of a decision of the presiding of- 
ficer, or “chair,” procures a vote of the body 
upon the decision. 

In old French law. A mode of procced- 
ing in the lords’ courts, where a party was 
dissatislied with the judgment of the peers, 
which was by accusing them of having given 
a false or malicious judgment, and offering 


| to make good the charge by the duel or com- 


The distinction between an appeal and a writ of | 


error is that an appeal is a process of civil law 
origin, and removes @ cause entirely, subjecting 


bat. This was called the “appeal of false 
judgment.” Montesq. Esprit des Lois, liv. 
28, c. 27. 


APPEAL BOND, The bond given on 
taking an appeal, by which the appellant 
binds himself to pay damages and costs if he 
fails to prosecute the appeal with effect. 


APPEALED. In a sense not strictly 
technical, this word may be used to signify 
the exercise by a party of the right to remove 
& litigation from one forum to another; as 
where he removes a suit involving the title 
to real estate from a justice’s court to the 
common pleas. 8 Metc. (Mass.) 166, 


APPEAR. In practice. To be properly 
before a court; as a fact or matter of which 
it can take notice. ‘To be in evidence; to be 
proved. “Making it appear and proving are 
the same thing.” Freem. 53. 

To be regularly in court; as a detendant in 
an action. See APPEARANCE. 


APPEARANCE. In practice. A com- 
ing into court as party to a suit, whether 
as plaintiff or defendant. 


APPEARANCE 


The formal proceeding by which a defend- 
ant submits himself to the jurisdiction of 
the court. 

According to Bouvier, appearance may be 
of the following kinds: 

Compulsory. That which takes place i in 
consequence of the service of process. 

Conditional, One which is coupled with 
conditions as to its becoming generai. 

De bene esse. One which is to remain an 
appearance, except in a certain event. See 
De BENE Esse. 

General. <A simple and absolute submis- 
sion to the jurisdiction of the court. 

Gratis. One made before the party has 
been legally notified to appear. 

Optional. One made where the party is 
not under any obligation to appear, but does 
so to save his rights. It occurs in chancery 
practice, especially in England. 

Special. That which is made for certain 
purposes only, and does not extend to all the 
purposes of the suit. 

Sudsequeni. An appearance by the de- 
fendant after one has already been entered 
for him by the plaintiff. See Daniell, Ch. Pr. 

Voluntary. That which is made in an- 
swer to a subpwna or summons without 
process. 1 Barb. Ch. Pr. 77. 


APPEARANCE DAY. The day for ap- 
pearing; that om which the parties are 
bound to come into court. 


APPEARAND HEIR. In Scotch law. 
An apparent heir. See ArrARENT Heir. 


APPELLANT. The party who takes an 
appeal from one court or jurisdiction to an- 
other. 


APPELLATE. Pertaining to or having 
cognizance of appeals and other proceedings 
for the judicial review of adjudications. 


APPELLATE COURT. A court hay- 
ing jurisdiction of appeal and review; a 
court to which causes are removable by ap- 
peal, certioravi, or error, 


APPELLATE JURISDICTION. Ju- 
risdiction on appeal; jurisdiction te revise or 
correct the proceedings in «cause already in- 
Btituted and acted upon by an inferior court, 
or by a tribunal having the attributes of a 
sourt. 6 Kan. 505. 


APPELLATIO. Lat. An appeal. 


APPELLATOR. An old law term hav- 
ing the same meaning as “appellant,” (q. v.) 
In the civil law, the term was applied to 


fi) APPLICABLE 
the judge ad guem, or to whom an appeal 
was taken. Calvin. 


APPELLEE. The party in a8 cause 
against whom an appeal is taken; also called 
the “respondent.” 


APPELLO. Lat. In the civil law. I 
appeal, The form of making an appeal apud 
acta. Dig. 49, 1, 2. 


APPELLOR, In old English law. A 
criminal who accuses his accomplices, or who 
challenges a jury. 


APPENDAGE. Something added aa an 
accessory to or the subordinate part of another 
thing. 28 N. J. Law, 26; 30 N. W. Rep. 
(Towa, ) 633, 


APPENDANT. A thing annexed to or 
belonging to another thing and passing with 
| it; a thing of inheritance belonging to an- 
other inheritance which is more worthy; as 
an advowson, common, ete,, which may be 
appendant fo a manor, commen of fishing to 
a frechold, a seat in a church to a house, ete. 
ii differs from appurtenance, in that append- 
ant must ever be by prescription, ¢ e., a per- 
sonal usage for a considerable time, while an 
appurtenance may be created at this day; for 
if a grani be made to a man and his heirs, of 
common in stich a moor for his beasts levant 
or couchant upon his manor, the commons 
are appurtenant to the manor, and the grant 
will pass them, Co. Litt. 1216. See ArPuR- 
TENANCE, 


APPENDITIA. The appendages or ap- 
purtenances of an estate or house. Cowell. 


APPENDIX. A printed volume, used 
on an appeal to the English house of lerds or 
privy council, containing the documents and 
other evidence presented in the inferior court 
and referred ta in the cases made by the par- 
ties for the appeal. Answering in some re- 
spects to the “paper-buok” or “case” in 
American practice. 


APPENSURA. Payment of money by 
weight instead of by count. Cowell. 


APPERTAINING. Belonging to; &pe 
purtenant. See ACPURTENANT. 


APPLICABLE. When a constitution or 
court declares that the common law isin forea 
in a particular state so far as it is applicadle, 
it is meani that it must be applicable to the 
habits and conditions of the community, as 
well as in harmony with the genius, the 
spirit, and the objects of their institutions. 

| o lowa, 402; 3 Scam. 121; 5 Gilman, 180. 


D 


APPLICABLE 


When a constitution prohibits the enact- 
ment of local or special laws in all eases where 
a general law would be applicable, a general 
law should always be construed to bo appli- 
cable, in this sense, where the entire people 
of the state have an interest in the subject, 
such as regulating interest, statutes of frauds 
or limitations, ete. But where only a por- 
tion of the people are affected, as in locating 
a county-seat, it will depend upon the facts 
and circumstances of each particular case 
whether such a law would be applicable. 8 
Ney. 322. 


APPLICARE. Lat. In old English law. 
To fasten to; to moor (a vessel.) Anciently 
rendered, “to apply.” Hale, de Jure Mar. 


Applicatio est vita regule. Applica- 
tion is the life of arule. 2 Bulst. 79, 


APPLICATION. A putting to, placing 
before, preferring a request or petition to or 
before a person. The act of making a re- 
quest for something. 

A written request to have a certain quan- 
tity of land at or near a certain specified place, 
3 Bin. 21; 5 Id. 151. 

The use or disposition made of a thing. 

A bringing together, in order to ascertain 
some relation or establish some connection; 
as the application of a rule or principle toa 
case or fact. 


In insurance. The preliminary request, 
declaration, or statement made by a party ap- 
plying for an insurance on life, or against 
fire. 


Of purchase money. The disposition 
made of the funds received by a trustee on a 
sale of real estate held under the trust. 


APPLICATION OF PAYMENTS. Ap- 
propriation of a payment to some particular 
debt; or the determination to which of sey- 
eral demands 4 general payment made by a 
debtor to his creditor shall be applied. 


APPLY. 1. To make a formal request or 
petition, usually in writing, toa court, officer, 
board, or company, for the granting of some 
favor, or of some rule ov order, which is with- 
in his or their power or discretion. For ex- 
ample, to apply for an injunction, for 4 par- 
don, for a policy of insurance. 

2. To use or employ for a particular pur- 
pose; to appropriate and devote toa particular 
use, object, demand, or subject-matter. Thus, 
to apply payments to the reduction of inter- 
est. 


80 


APPORTIONMENT 


8. To put, use, or refer, as suitable or rel- 
ative; to co-ordinate language with a particu- 
lar subject-matter; as toapply the words of a 
statute to a particular state of facts. 


APPOINTEHE. A person whois appoint 
ed or selected fora particular purpose; as the 
appointee under a power is the person who is 
to receive the benefit of the power. 


APPOINTMENT. In chancery prac- 
tice. The exercise of a right to designate 
the person or persons who are to take the use 
of real estate. 2 Washb. Real Prop. 302. 

The act of a person in directing the dispo- 
sition of property, by limiting a use, or by 
substituting a new use for a former one, in 
pursuance of a power granted to him for that 
purpose by a preceding deed, called a “power 
of appointment;” also the deed or other in- 
strument by which he so conveys. 

Where the power embraces several per- 
mitted objects, and the appointment is made 
to one or more of them, excluding others, it 
is called “exclusive.” 

Appointment may signify an appropriation 
of money to a specific purpose. 3 N. Y. 98, 
119. 

In public law. The selection or designa- 
tion of a person, by the person or persons 
having authority therefor, to fill an oilice or 
public function and discharge the duties of 
the same. 

The term “appointment” is to be distin- 
guished from “election.” The former is an 
executive act, whereby a person is named as 
the incumbent of an office and invested there. 
with, by one or more individuals who have 
the sole power and right to select and con- 
stitute the officer. Election means that the 
person is chosen by a principle of selection 
in the nature of a vote, participated in by 
the public generally or by the entire class of 
persons qualified to express their choice ia 
this manner. 


APPOINTOR. The person who appoints, 
or executes a power of appointment; as ap- 
pointee is the person to whom or in whose 
favor an appointment is made. 1 Steph. 
Comm. 506, 507; 4 Kent, Comm. 316, 

One authorized by the donor, under the 
statute of uses, to execute a power. 2 Bouy. 
Inst. n. 1928. 


APPORT. L. Fr. In old English law. 
Tax; tallage; tribute; imposition; payment; 
charge; expenses. Kelham. 


APPORTIONMENT. The division, par- 
tition, or distribution of a subject-matter in 


0} Co. Litt. 147; 1Swanst. 
#7, n.; 1 Story, Eq. Jur. 4754. 

Of contracts. The allowance, in case of 
a severable contract, partially performed, of 
a part of the entire consideration propor- 
tioned to the degree in which the contract 
was carried out. 

Of rent. The allotment of their shares 
fo a rent to each of several parties owning 
tt. The determination of the amount of rent 
to be paid when the tenancy is terminated 
at some period other than one of the regular 
intervals for the payment of rent. 

Of incumbrances. Where several per- 
fons are interested in an estate, apportion- 
ment, as hebween them, is the determination 
of the respective amounts which they shall 
contribute towards the removal of the in- 
cumbrance. 

Of corporate shares. The pro tanto 
division among the subscribers of the shares 
allowed to be issued by the charter, where 
‘wore than the limited number have been sub- 
scribed for. 

Of common. 
common between several persons, among 
whom the land to which, as an entirety, it 
first belonged has been divided. 


Of representatives. The determination 


of representatives in congress which each 
siate sliail elect, the calculation being based 
upon the population. See Const. U.S. art. 
1,§2 


APPORTS EN NATURE. In French 
law. That which a partner brings into the 
partnership other than cash; for instance, 
securities, realty or personalty, cattle, stock, 
oreven his personal ability and knowledge. 
Argl. Pr. Mere. Law, 545. 


APPORTUM. 
revenue, profit, or emolument which a thing 
brings to the owner. Commonly applied to 
ucorody or pension. Blount. 


APPOSAL OF SHERIFFS. The charg- 
ing them with money received upon their 
account in the exchequer.’ St. 22 & 23 Car. 
I1.; Cowell. 


SPPOSHR. An officer in the exchequer, 
clothed with the duty of examining the sher- 
iffs in respect of their accounts. Usually 
called the “foreign apposer.” 
Lay. 

APPOSTILLE, or APOSTILLE. In 
French law, an addition or annotation made 
ia the margin of a wriling. Merl. Repert. 

AM. DIOT.LAW—6 


A division of the right of | 


APPORTIONMENT 81 


APPRENTICE EN LA LEY 


APPRAISE. In practice. To fix or set 
a price or value upon; to fix and state Lhe true 
value of a thing, and, usually, in writiny. 


APPRAISEMENT. A justand true val- 
uation of property. A valuation set upon 
property under judicial or legislative wuthor- 


| ity. 


upon each decennial census of the number | 


) 


Inold English law. The | 


i} 


Termes dela | 


APPRAISER. A person appointed by 
competent authority to make an appraise- C 
ment, to ascertain and state the true value of 
goods or real estate. 


APPREHEND. ‘To take hold of, whether 
with the mind, and so to conceive, believe, D 
fear, dread; or actually and bodily, and so to 
take a person on a criminal process; to seize; 
to arrest. 1 Amer. & Ing. Enc. Law, 636. 


APPREHENSIO. Lat. Intheciviland 
old English law. <A taking hold of a person E 
or thing; apprehension; the seizure or capt- 
ure of aperson. Calvin. 

One of the varieties or subordinate forms 
of oceupatio, or the mode of acquiring title F 
to things not belonging to any one. 


APPREHENSION. In practice. The 
seizure, taking, or arrest of a person on a 
criminal charge. The term “apprehension” G 
is applied exclusively to criminal cases, and 
“arrest” to both criminal and civil cases. 

In the civil law. <A physical or corpo: 
ral act, (corpus,) on the part of one who in- 
tends to acquire possession of a thing, by H 
which he brings himself into such a relation 
to the thing that he may subject it to his ex- 
clusive control; or by which he obtains the 
physical ability to exercise his power over the | 
thing whenever he pleases. One of the req- 
uisites to the acquisition of judicial posses- 
sion, and by which, when accompanied by 
intention, (animzus,) possession is acquired. 
Mackeld. Rom. Law, §§ 248, 249, 250. J 


APPRENDRE. 
received. Cowell. 


A fee or profit taken or 


APPRENTICE. A person, usually a 
minor, bound in due form of Jaw to a master, 
to learn from him his art, trade, or business, 
and to serve him during the time of his ap- 
prenticeship. 1 Bl. Comm. 426; 2 Kent, 
Comm. 211; 3 Rawle. 307; 4 Term. 735. 


APPRENTICE EN LA LEY. Anan- 
cient name for students at law, and after- 
wards applied to counselors, apprentic? ad 
barras, from which comes the more modern 
word “barrister.” 


—— 


APPRENTICESHIP 82 


APPRENTICESHIP. <A contract by 
which one person, usually a minor, called the 
“apprentice,” is bound to another person, 
ealled the “muster,” to serve him during a 
prescribed term of years in his art, trade, or 
business, in consideration of being instruct- 
ed by the master in such art or trade, and 
(commonly) of receiving his support and 
maintenance from the master during such 
tern. 

The term during which an apprentice is to 
serve. 

The status of an apprentice; the relation 
subsisting between an apprentice and his 
master. 


APPRENTICIUS AD LEGEM. An 
apprentice tothe law; a law student; a coun- 
selor below the degree of serjeant; a barris- 
ter. See APPRENTICE EN LA LEY. 


APPRIZING. In Scotch law. A form 
of process by which a creditor formerly took 
possession of the estutes of the debtor in pay- 
ment of the debt due. It is now superseded 
by adjudications. 


APPROACH. Ininternational law. The 
tight of a ship of war, upon the high sea, 
to visit another vessel for the purpose of 
ascertaining the nationality of the latter. 1 
Kent, Comm. 158, note. 


APPROBATE AND REPROCBATE. 
In Scotch law. To approve and reject; to 
take advantage of one part, and reject the 
rest. Bell. Equity suffers no person to ap- 
probate and reprobate the same deed. 1 
Kames, Eq. 317; 1 sell, Comm. 146, 


APPROPRIATE. 1. To make a thing 
one’s own; to make a thing the subject of 
property; toexercise dominion over an object 
to the extent, and for the purpose, of making 
it subserve one’s own proper use or pleasure. 
‘The term is properly used in this sense to de- 
note the acquisition of property and a right of 
exclusive enjoyment in those things which 
before were without an owner or were pub- 
licé juris. 

2. ‘Po prescribe a particular use for particu- 
lar moneys; to designate or destine a fund or 
property for adistinet use, or for the payment 
of a particular demand. 

In its uso with reference to payments or moneys, 
there is room for a distinction between this term 
and “apply.” The former properly denotes the 
setting apart of afund or payment fora particular 
use or purpose, or the mental act of resolving that 
it shall be so employed, while “apply” signifies the 
actual expenditure of the fund, or using the pay- 
ment, for the purpose to which it has been appro- 


APPROVAL 


priated. Practically, however, the words are used 
jnterchangeably. 

3. Toappropriate is also used in the sense 
of to distribute; in this sense it may denote 
the act of an executor or administrator who 
distributes the estate of his decedent among 
the legatees, heirs, or others entitled, in pur- 
suance of his duties and according to their 
respective rights. 


APPROPRIATION. The act of appro- 
priating or setting apart; prescribing the 
destination of a thing; designating the use 
or application of a fund. 

In public law. The act by which tho 
legislative department of government desig- 
nates a particular fund, or sets apart a speci- 
fied portion of the public revenue or of the 
money in the public treasury, to be applied 
to some general object’ of governmental ex- 
penditure, (as the civil service list, ete.,) or 
to some individual purchase or expense. 

When money is appropriated (7. e., set 
apart) for the purpose of securing the pay- 
ment of a specific debt or class of debts, or 


| for an individual purchase or object of ex: 


pense, it issaid to be specitically appropriated 
for that purpose. 

A specific appropriation is an act of the 
legislature by which a named sum of money 
has been set apart in the treasury, and de 
voted to the payment of a particular demand. 
45 Cal. 149. 

Appropriation of payments. This 
means the application of a payment to the 
discharge of a particular debt. Thus, if a cred- 
itor has two distinct debts due to him from 
his debtor, and the latter makes a general 
payment on account, without specifying at 
the time to which debt he intends the pay- 
ment to apply, it is optional for the creditor 
to appropriate (apply) the payment to either 
of the two debts he pleases. (1 Mer. 585.) 
Brown. 

In English ecclesiastical law. The 
perpetual annexing of a benefice to some 
spiritual corporation either sole or aggregate, 
being the patron of the living. 1 Bl. Comm, 
384; 3 Steph. Comm. 70-75: 1 Crabb, Real 
Prop. p. 144, § 129. Where the annexation is 
to the use of a lay person, it is usually called 
an “impropriation.” 1 Crabb, Real Prop. p, 
145, § 180. 

APPROPRIATOR. In English ecclesias- 


tical law. A spiritual corporation entitled ta’ 
the profits of a benefice. 


APPROVAL. The aet of a judge or mag- 
istrate in sanctioning and accepting as satis- 


APPROVE 


tory a bond, security, or other instrument 
Which is required by law to pass his inspec- 
ion and receive his approbation before it be- 
mes operative. ‘ 


A oY E To take to one’s proper and 
eparate use, To improve; to enhance the 
al er profits of anything. To inclose and 
ultivate common or waste land. 

To wpprove commen or waste land is toin- 
lose and convert it to the purposes of hus- 
ry, Which the owner might always do, 
rovided he left common suilicient for such 
#3 were entitled to it. St. Mert. ¢. 4; St. 
Vestm. 2, c. 46; 2 Bl. Comm. 84; 3 Bl. 
fumm. 240; 2 Steph. Comm. 7; 8 Kent, 
Jomm. 406, 


fh old criminal law. To accuse or prove; 


against him. 


APPROVED INDORSED NOTES. 
Notes indursed by another person than the 
taker, for additional security. 


APPROVEMENT. Bythecommon law, 
on, and incident to the arraignment ofa 
‘isoner indicted for treason or felony, who 
tonfesses the tack before plea pleaded, and 
peals or uccuses others, his accomplices in 
ame crime, in order to obtain his own 
pardon. In this case he is called an “ap- 
prover,” or “prover,” “probator,” and the 
party appealed or accused is called the “ap- 
pellee.” Such approvement can only be in 
al offenses, and it is, as ib were, equiva- 
lent to an indictment, since the appellee is 
equally called upon to answer it. 26 Il}. 547. 


APPROVER. Approvement; improve- 
ment. “There can be no approver in dero- 
gation of a right of common of turbary.” 1 
Taunt. 435. 


APPROVER. L. Fr. 
prove; to vouch. Kelham. 


APPROVER. Inecriminallaw. An ac- 
complice in crime who accuses others of the 
game offense, and is admitted as a witness at 
the discretion of the court to give evidence 
against his companions in guilt. He is vul- 
garly called “Queen's Evidence.” 

He is one who confesges himself guilty of 
felony and accuses others of the same crime 
to save himself from punishment. 26 Ill, 
175. 

In old English law. Certnin men sens 
into the several] counties to increase the 
farms (rents) of hundreds and wapentakes, 


To approve or 


provement is said to be a species of con- ; 


83 


i 
pendage; 
accuse an accomplice by giving evidence | 


APT WORDS 


which formerly were let at a certain yvalueto 
the sheriff. Cowell. 


APPROVERS. In old English law. 
Bailiffs of lords in theirfranchises. Sheriffs 
were called the king’s “approvers” in 1 Edw. 
Iil. st. 1, ¢. 1. Termes de la Ley, 49. 

Approvers in the Marches were those who 
had license to sell and purchase beasts there. 


APPRUARE. To take to one’s use or 


profit. Cowell. 
APPULSUS. Inthecivillaw. A driv- 
ing to, as of cattle to water. Dig. 8,3, 1,1 


APPURTENANCE. That which be- 
longs to something else; an adjunct; an ap- 
something annexed to another 
thing more worthy as principal, and which 
passes as incident to it, as a right of way or 
other easement to land; an out-house, barn, 
garden, or orchard, to a house or messuage. 
Webster. 

Appurtenances of a ship include whatever 
is on board a ship for the objects of the voy- 
age and adventure in which she is engaged, 
belonging to her owner. 

Appurienant is substantially the same in 
Ineaning as accessory, but it is more technic- 
ally used in relation to property, and is the 
more appropriate word for a conveyance. 


APPURTENANT. Belonging to; acces- 
sory or incident to; adjunct, appended, or an- 
nexed to; answering to accessorium im the 
civillaw. 2Steph. Comm. 30 note. 

A thing is deemed to be incidental or ap- 
purtenant to land when it is by right used 
with the land for its benefit, as in the case of 
a way, or water-course, or of a passage for 
light, air, or heat from or across the land of 
another, Civil Code Cal. § 662. 

In common speech, appurtenant denotes 
annexed or belonging to; but in law it de- 
notes an annexation which is of convenience 
merely and not of necessity, and which may 
have had its origin at any time, in both which 
respects it is distinguished from appendant, 


(q- v) 


APT TIME. Api time sometimes de- 
pends upon dapse of time; as, where a thing 
is required to bedone at the first term, or 
within a given time, it cannot be done after- 
wards. But the phrase more usually refers 
to the ovder of proceedings, as fit or suitable. 
74 N.C. 383, 


APT WORDS. Words properto produce 
the legal effect for which they are intended; 
sound technical plirases. 


APTA VIRO 


APTA VIRO. Fit for a husband; mar- 
tiagsable; a woman who has reached mar- 
tiageable years. 


APUD ACTA. Among theacts; among 
the recorded proceedings. In the civil law, 
this phrase is applied to appeals taken orally, 
in the presence of the judge, at the time of 
judgment or sentence. 


AQUA. Inthe civil and old English law. 
Water; sometimes a stream or water-course. 


AQUA ASTIVA. In Roman law. 
Summer water; water that was used in sum- 
mer only. Dig. 43, 20, 1, 3, 4. 


Aqua cedit solo. Water follows the 
land. A sale of land will pass the water 
which coversit. 2B! Comm. 18; Co. Litt. 4. 


AQUA CURRENS. Running water. 


Aqua currit et debet currere, ut cur- 
rere solebat. Water runs, and ought to 
run, as it has used to run. 3 Bulst. 339; 3 
Kent, Comm. 439. A running stream should 
be left to flow in its natural channel, without 
alteration or diversion. A fundamental max- 
im in the law of water-courses. 


AQUZ DUCTUS. Inthe civillaw. A 
servitude which consists in the right to carry 
water by means of pipes or conduits over or 
through the estate of another. Dig. 8, 3, 1; 
Inst. 2, 8. 


AQUA DULCIS or FRISCA. Fresh 
water. Reg. Orig. 97; Bract. fols. 117, 135. 


AQUA FONTANBA. Spring water. 
Fleta, lib. 4, c. 27, § 8. 


AQUZ HAUSTUS. In the civil law. 
A servitude which consists in the right to 
draw water from the fountain, pool, or 
spring of another. Inst. 2, 8, 2; Dig. 8, 3, 
Hetks 


AQUZ IMMITTENDA. A civil law 
easement or sarvitude, consisting in the right 
of one whose house is surrounded with other 
buildings to cast waste water upon the adja- 
eent roofs or yards. Similar to the common 
law easement of drip. 15 Barb. 96, 


AQUA PROFLUENS. 
ning water. Dig. 1, 8, 2. 


AQUA QUOTIDIANA. In Roman law. 
Daily water; water that might be drawn at 
all times of the year, (gwa quis quotidie possit 
uti, si veilet.) Dig. 43, 20, 1-4, 


AQUA SALSA. 


Flowing orrun- 


Salt water. 


84 ARBITER 


AQUAGIUM. A canal, ditch, 
course running through marshy 
A mark or gauge placed in or on 
of a running stream, to indicate t 
of the water, was called “equag 
Spelman. 


AQUATIC RIGHTS. Rights w 
dividuals have to the use of the 
rivers, for the purpose of fishing and 
tion, and also to the soil in the se 
ers. 


ARABANT. They plowed. A te 
feudal law, applied to those who he 
the tenure of plowing and tilling t 
lands within the manor. Cowell. 


ARAHO. In feudallaw. To mak 
in the church or some other holy place. 
oaths were made in the churel upon the 
ics of saints, according to the Ripuz 
laws. Cowell; Spelman. 


ARALIA. Plow-lands. Land ft fo 
the plow. Denoting the character of land, 
rather than its condition. Speiman. 


ARATOR. A plow-man; a farmer ofai 
ble land. 


land as could be tilled with one plo 
Whishaw. 


ARATURA TERR. The plowing of 
Jand by the tenant, or vassal, in the service 
of his lord. Whishaw. 


ARATURIA. Land suitable for the 
plow; arable land. Spelman. 


ARBITER. A person chosen to decide 
a controversy; an arbitrator, referee. 


A person bound to decide according to the rules 
of law and equity, as distinguished from an arbi- 
trator, who way proceed wholly at his own dis- 
cretion, so that it be according to the judgment of 
B sound man. Cowell. 

According to Mr. Abbott, the distinction js ag 
follows: “Arbitrator” is a technical name of a 
person selected with reference to an establishad 
system for friendly determination of controver 
sies, which, though not judicial, is yet regulated 
by law; sothat the powers and duties cf the ar 
bitrator, when ouce he is chosen, are prescribed 
by law, and his doings may be judicially revised 
if ha has exceeded itis authowty. “Arbiter” is an 
untechnical designation of a person to whom a con- 
troversy is referred, irrespective of any law ta 
govern the decision; and is the proper word to aig: 
nify a referee of a question outside of or above 
municipal law. 

But itis elsewhere said that the distinction be 
tween arbiters and arbitrators is not observed in 
modern law. Russ. Arb. 112. 


ARBITER 


In the Roman law. A judge invested 
with a diseretionary power. <A person ap- 
pointed by the prastor to examine and decide 
that class of causes or actions termed “tone 
fidei,” and who had the power of judging ac- 
zorling to the principles of equity, (ex equo 
at bonoy) distinguished from the judea, (q. 
d.,) who was bound to decide according to 
strict law. Inst. 4, 6, 30, 31, 


ARBITRAMENT. The award or decis- 
lon of arbitrators upon a matter of dispute, 
which has been submitted to them. Termes 
de la Ley. 


ARBITRAMENT AND AWARD. A 
plea to an action brought for the same cause 
which had been submitted to arbitration and 
on which an award had been made. Wats. 
Arb, 256. 


Arbitramentum sequum tribuit cuique 
suum. A just arbitration renders to every 
one his own. Noy, Max, 248. 


ARBITRARY. Not supported by fair, 
solid, and substantial cause, and without 
reason given. L.R. 9 Exch. 155. 


ARBITRARY PUNISHMENT. That 
punishment which is left to the decision of 
the judge, in distinction from those defined 
by statute. 


ARBITRATION. In practice. The in- 
vestigation and determination of a matter or 
mutters of difference between contending 
parties, by one or more unofficial persons, 
chosen by the parties, and called “arbitra- 
tors,” or “referees.” Worcester; 3 Bil. 
Comm. 16. 

Compulsory arbitration is that which takes 
place when the consent of one of the parties 
igs enforced by statutory provisions. 

Voluntary arbitration is that which takes 
place by mutual and free consent of the par- 
ties. 

In a wide sense, Lhis term may embrace 
the whole method of thus settling controver- 
sies, and thus include all the various steps. 
But in more strict use, the decision is sepa- 
rately spoken of, and called an “award,” and 
the “arbitration” denotes only the submis- 
siun and hearing. 


ARBITRATION OF EXCHANGE. 
This takes place where a merchant pays his 
debts in one country by a bill of exchange 
upon another. 


ARBITRATOR. A private, disinterest- 
ed person, chosen by the parties to a disputed 
question, for the purpose of hearing their 


85 


ARCHDEACON 


contention, and giving judgment between 
them; to whose decision (award) the litigants 
submit themselves either voluntarily, or, in 
some cases, compulsorily, by order of a court. 

“Referee” is of frequent modern use as a 
synonym of arbitrator, but is in its origin of 
broader signification and less accurate than 
arbitrator, 


ARBITRIUM. The decision of an arbi- 
ter, or arbitrator; an award; a judgment. 


Arbitrium est judicium. An award is 
ajudgment. Jenk, Cent. 187, 


Arbitrium est judicium boni viri, se- 
cundum eguum et bonum. An award 
is the judgment of a good man, according to 
justice. 3 Bulst. 64. 


ARBOR. Lat. 
thing larger than an herb; a general term in- 
cluding vines, osiers, and even reeds. ‘The 
mastofaship. Brissonius. Timber. Ains- 
worth; Calvin. 


ARBOR CONSANGUINITATIS. A 
table, formed in the shape of a tree, showing 
the genealogy of a family. See the arbor 
eivilis of the civilians and canonists. Hale, 
Com. Law, 335. 


Arbor dum crescit, ignum cum cres- 
cere nescit. [That which is] a tree while 
it grows, [is] wood when it ceases to grow. 
Cro. Jac. 166; Hob. 775, in marg. 


ARBOR FINALIS. Inold English law. 
A boundary tree; a tree used for making a 
boundary line. Bract. fols. 167, 2070. 


ARCA. Lat. In thecivillaw. A chest 
or coffer; a place for keeping money. Dig. 
30, 80, 6; Id. 82, 64. Brissonius. 


ARCANA IMPERII. 
Bl. Comm. 337. 


ARCARIUS. In celyil and old English 
law. <A treasurer; a keeper of public money. 
Cod. 10, 70, 15; Spelman. 


ARCHAIONOMIA. A_ collection of 
Saxon laws, published during the reign of 
Queen Elizabeth, in the Saxon language, with 
a Latin version by Lambard. 


State secrets. 1] 


ARCHBISHOP. In English ecclesias- 
ticallaw. ‘The chief of the clergy in his prov. 
ince, having supreme power under the king 
or queen in all ecclesiastical causes. 


ARCHDEACGN. A dignitary of the 
church who has ecclesiastical jurisdiction im- 


{ mediately subordinate to that of the bishop, 


A tree; a plant; some- 


H 


ARCHDEACON’S COURT 


either throughout the whole of his diocese or | 
in some particular part of it. 


ARCHDEACON’S COURT. In English 
ecclesiastical law. A court held before a 
judge appointed by the archdeacon, and called 
his ofticiai, Its jurisdiction comprises the 
granting of probates and administrations, 
and ecclesiastical causes in general, arising 
Within the archdeaconry. It is the most in- 
ferior court in the whole ecclesiastical polity 
of England. 3Bl. Comm. 64; 3Steph. Comm. 
430. 


ARCHDEACONRY. A division of a 
diocese, and the circuit of an arcldeacon’s 
jurisdiction. 


ARCHERY. In feudal law. A service 
of keeping a bow for the lord’s use in the de- 
fense of his castle. Co. Litt. 157. 


ARCHES COURT. In English ecclest- 
asticallaw, A court of appeal belonging to the 
Archbishop of Canterbury, the judge of which 
is called the “Dean of the Arches,” because 
his court was anciently held in the church of 
Saint Mary-le-Bow, (Sancta Maria de Arcu- 
bus,) so named from the steeple, which is 
raised upon pillars built archwise. The court 
was until recently held in the hall belonging 
to the College of Civilians, commonly called 
“Doctors’ Commons.” It is now held in 
Westminster Hall. Its proper jurisdiction 
is only over the thirteen peculiar parishes be- 
longing to the archbishop in London, but, 
the office of Dean of the Arches having been 
for a long time united with that of the areh- 
bishop’s principal oflicial, the Judge of the 
Arches, in right of sueh added office, it re 
ceives and determines appeals from the sen- 
tences of all inferior ecclesiastical courts 
within tlhe province. 3 Bl. Comm, 64. 


ARCHETYPE. The original copy. 


ARCHICAPELLANUS. L. Lat. In 
old European Jaw. A chief or high chancel- 
Jor, (summus canceliarius.) Spelman. 


ARCHIVES. The Rolls; any place where 
ancient records, charters, and evidences are 
kept. In libraries, the private depository. 
Cowell; Spelman. 

The derivative meaning of the word (now 
the more common) denotes the writings them- 
selves thus preserved; thus we say the ar- 
ehives of a college, of a monastery, etc. 


86 


ARCHIVIST. Thecustodian of archives. 


ARCTA ET SALVA CUSTODIA, 
Lat. In strict and safe custody or keeping. 


ARGENTEUS 


When a defendant is arrested on a capias ad 
satisfaciendum, (ca. sa.,) he is to be kept 
arcta et saiva custodia. 3 Bl. Comm. 415. 


ARDENT SPIRITS. This phrase, ing 
statute, does not include alcohol, which is not 
a liquor of any kind. 34 Ark. 340, 


ARDOUR. In old English law. An in- 
cendiary; a house burner. 


ARE. A surface measure in the French 
law, in the form of a square, equal to 1076.44] 
square feet. 


AREA. An inclosed yard or opening in 
a house; an open place adjoining a house, 
1 Chit. Pr. 176. 

In the civil law. A vacant space inacity; 
a place not built upon, Dig. 50, 16, 211. 

The site of a house; a site for building; 
the space where a house has stood. ‘The 
ground on which a house is built, and which 
remains after the house is removed. Bris- 
sonius; Calvin. 


ARENALES. In Spanish law. Sandy 
beaches; or grounds on the banks of rivers. 
White, Recop. b, 2, tit. 1, c. 6. 


ARENIFODINA. In thecivillaw. A 
sand-pit. Dig. 7, 1, 13, 5. 


ARENTARE. Lat. To rant; to let out 
at a certain rent. Cowell. Arentatio. A 
renting. 


AREOPAGITE. In ancient Greek law. 
A lawyer or chief judge of the Areopagus in 
capital matters in Athens; a‘ tribunal so 
called after a hill or slight eminence, in a 
street of that city dedicated to Mars, where 
the court was held in which those judges 
were wont to sit. Wharton, 


ARETRO. In 
written @ retro. 


arrear; behind. Also 


ARG. An abbreviation of arguendo, 
ARGENT. 


ARGENTARIUS. In the Roman law,a 
money lender or broker; a dealer in money; 
a banker. Argentarium, the instrument of 
the loan, similar to the modern word “bond” 
or “note.” 


ARGENTARIUS MILES. <A money 
porter in the English exchequer, who carries 
the money from the lower to the upper excheq- 
uer to be examined and tested. Spelman. 


In heraldry. Silver. 


ARGENTEUS. An old French coin, an- 
swering nearly to the English shilling. 
Spelman. 


— 


i a 


ARGENTUM 


ARGENTUM. Silver; money. 


ARGENTUM ALBUM. Bullion; un- 
coined silver; common silver coin; silver coin 
worn smooth. Cowell; Spelman. 


ARGENTUM DEI. Lat. God’s mon- 
ey; God’s penny; money given as earnest in 
making a bargain. Cowell. 


ARGUENDO., Inarguing; in the course 
ofthe argument. A statement or observa- 
tion made by a judge as a matter of argu- 
ment or iilustration, but not directly bearing 
upon the case at bar, or only incidentally in- 
yolved in it, is said (in the reports) to be made 
arguendo, or, in the abbreviated form, arg. 


ARGUMENT. In rhetoric and logic, an 
inference drawn from premises, the truth of 
witch is indisputable, or at least highly prob- 
able. 

The arzument of a demurrer, special case, appeal, 
or other proceeding involving a question of law, 
consists of the speeches of the opposed counsel; 
namely, the “opening” of the counsel having the 
right to begin, (q. v.,) the speech of his opponent, 
andthe “reply” of the first counsel. It answers 
to the trial of a question of fact. Sweet. 


ARGUMENT AB INCONVENIENTI. 


An argument arising from the inconvenience | 


which the proposed construction of the law 
would create. 


ARGUMENTATIVE. In pleading. In- 
direct; inferential. Steph. Pl. 179. 

A pleading is so called in which the state- 
ment on which the pleader relies is implied 
instead of being expressed, or where it con- 
tains, in addition to proper statements of 
facts, reasoning or arguments upon those facts 
and their relation to the matier in dispute, 
such as should be reserved for presentation at 
the trial. 


Argumentum a communiter acciden- 
tibus in jure frequens est. An argument 
drawn from things commonly happening is 
frequent in law. Broom, Max. 44. 


Argumentum a divisione est fortissi- 
mum in jure. An argument from division 
[of the subject] is of the greatest force in 
law. Co. Litt. 2138; 6 Coke, 60. 


Argumentum @ majori ad minus neg-" 


ative non valet; valet e converso. An 
argunent from the greater to the less is of 
no force negatively; aflirmatively itis. Jenk. 
Cent. 281. 


Argumoentum a simili valet in lege. 
An argument from a like case (from analogy) 
Is good in law. Co. Litt. 191. 


87 


; mum valet [est validum] in lege. 


, of foresight in the grantor. 
| Taunt. 496. 


ARISTOCRACY 


Argumentum ab auctoritate est for- 
tissimum in lege. An argument from 
authority is the strongest in the law. “The 
book cases are the best proof of what the law 
is.” Co. Litt. 254a. 


Argumentum ab impossibili valet in 
lege. An argument drawn from an impos- 
sibility is forcible in law. Co. Litt. 92a. 


Argumentum ab inconvenienti est 
validum in lege; quia lex non permit- 
tit aliquod inconveniens. An argument 
drawn from what is inconvenient is good in 
law, because the law will not permit any in- 
convenience. Co. Litt. 66a, 258. 


Argumentum ab inconvenienti pluri- 
An 
argument drawn from inconvenience is of 
the greatest weight [is forcible] in law. Co. 
Litt. 66a, 97a, 1526, 2586; Broom, Max. 
184. If there be in any deed or instru- 
ment equivocal expressions, and great incon- 
venience must necessarily follow from one 
construction, it is strong to show that such 
construction is not according to the true in- 
tention of the grantor; but where there is no 
equivocal expression in the instrument, and 
the words used admit only of one meaning, 
arguments of inconvenience prove only want 
3 Madd. 540; 7 


ARIBANNUM. In fendal law. A fine 
for not setting out to join the army in obedi- 
ence to the summons of the king. 


ARIERBAN, or ARRIERE-BAN. 
An edict of the ancient kings of F'rance and 
Germany, commanding all their vassals, the 
noblesse, and the vassals’ vassals, to enter 
the army, or forfeit their estates on refusal. 
Spelman. 


ARIMANNI. A medisxval term for a 
class of agricultural owners of small allodial 
farms, which they cultivated in connection 
with larger farms belonging to their Jords, 
paying rent and service for the latter, and 
being under the protection of their superiors. 
Military tenants holding lands from the em- 
peror. Spelman. 


ARISTOCRACY. A government in 
which a class of men rules supreme. 

A form of government which is lodged in 
a council composed of select members or 
nobles, without a monarch, and exclusive of 
the people. 

A privileged class of the people: nobles 
and dignitaries; people of wealth and station 


“i 


a 


ARISTO-DEMOCRACY 


ARISTO-DEMOCRACY. A form of 
government where the power is divided be- 
tween the nobles and the people. 


ARLES. Earnest. Used in Yorkshire 
in the phrase * Arles-penny.” Cowell. In 
Scotland it has the same signification, Bell- 


ARM OF THE SEA. A portion of the 
sea projecting inland, in which the tide ebbs 
and flows. 5 Coke, 107. 

An arm of the sea is considered as extending 
as far into the interior of a country as the 
water of fresh rivers is propelled backwards 
by the ingress of the tide. Ang. Tide-wa- 
ters, 73, 


ARMA. Lat. Arms; weapons, offensive 
and defensive; armor; arms or cognizances 
of families. 


ARMA DARE. To dub or make a 
knight, 


Arma in armatos sumere jura sinunt. 
The laws permit the taking up of arms 
against armed persons. 2 Inst. 574. 


ARMA MOLUTA. Sharp weapons that 
cut, in contradistinction fo suchas are blunt, 
which only break or bruise. Fieta, lib. 1, c. 
35, par. 6, 


ARMA REVERSATA. Reversed arms, 
a punishment for a traitor orfelon. Cowell. 


ARMATA VIS. Inthecivillaw. Armed 
force. Dig. 43, 16, 3; Fleta, lib. 4, ¢. 4. 


ARMED. A vessel is “armed” when she 
is fitted with a full armament for fighting 
purposes. She may be equipped for warlike 
purposes, without being “armed.” By 
“armed” it is ordinarily meant that she has 
eannen, but if she had a fighting crew, mus- 
kets, pistols, powder, shot, cutlasses, and 
boarding appliances, she might well be said 
to be equipped for warlike purposes, though 
notarmed. 2 Hurl. & C.537; 2 Cranch, 121, 


ARMIGER. An armor-bearer; an es- 
quire. A title of dignity belonging to gen- 
tlemen authorized to bear arms. Cowell, 

In its earlier meaning, a servant who car- 
ried the arms of a knight. Spelman, 

A tenant by scutage; a servant or valet; 
applied, also, to the higher servants in con- 
vents. Spelman, 


ARMISCARA. An ancient mode of pun- 
{shment, which was to carry a saddle at the 
back as a token of subjection, Spelman. 


88 


AROMATIO 


ARMISTICE, A suspending or cessation 
of hostilities between belligerent nations or 
forees for a considerable time, 


ARMORIAL BHARINGS. In English 
law. <A device depicted on the (now iragi- 
nary) shield of one of the nobility, of which 
gentry is the lowest degree. The criterion of 
nobility is the bearing of arms, or armorial 
bearings, received from ancestry. 


Armorum appellatione, non solum 
scuta ot gladii et gales, sed et fustes et 
lapides continentur. Under the name of 
aries are included, not eniy shields and swords 
and helmets, but also clubs and stones. Co. 
Litt. 162. 


ARMS. Anything that a man wears for 
his defense, or takes in his hands, or nses in 
his anger, to cast at or strike at another, 
Co. Litt. 1616, 162¢,; Cromp. Just. Peace, 65. 

This term, as it is used in the constitution, 
relative to the right of citizens to bear arms, 
refers to the arms of a militiaman or soldier, 
and the word is used in its military sense. 
The arms of the infantry soldier are the mus- 
ket and bayonet; of cavalry and dragoons, tha 
sabre, holster pistols, and carbine; of the ar 
tillery, the field-piece, siege-fun, and mortar, 
with side arins. ‘The term, ia this eonnec- 
tion, cannot be made te cover such weapons 
as dirks, daggers, slung-sliots, sword-canes, 
brass knuckles, and bowie-knives. ‘These 
are not military arms. o/ Tex.476; 3 Heisk. 
179. 

Arms, or coat of arms, signifies insignia, 
i. e., ensigns of honor, such as were formerly 
assumed by soldiers of fortune, and painted 
on their shields to distinguish them; or 
nearly the same as armorial bearings, (q. 0.) 


ARMY. The armed forces of a nation In- 
tended for military service on land. 

“The term ‘army’ or ‘armies’ has never 
been used by congress, so far as I am advised, 
su as to include the navy or marines, and 
there is nothing in the act of 1862, or the 
circumstances which led to its passage, to 
warrant the conclusion that if was used there- 
in in any other than ils long established and 
ordinary sense,—the land forces, as distin- 
guished from the navy and marines.” 2 
Sawy. 205, 


AROMATARIUS. A word formerly 
used fora grocer. 1 Vent, 142. 


AROMATIC. This word, when em- 
ployed to express one of the qualities ofa 
liquor, cannot be protected as a trade-mark, 
45 Cal. 467. 


ARPEN 


ARPEN, Arpent. A measure of land of 
uncertain quantity, mentioned in Domesday 
nd Oller old books; by some called an 
“acre,” by others “helt an acre,” and by 
“furlong.” Spelman; Cowell; 
A nieasure of land in Louisiana. 6 Pet. 
A French measure of land, containing one 
tiundred square perches, of eighteen feet 
eich, or about an acre. But the quantity 
varied in different provinces. Spelman. 


ARPENTATOR. A measurer or sur- 
yeyor of land. Cowell; Spelman. 


ARRA. Inthecivillaw. FE:rnest; earn- 
est-emoney; evidence of a completed bargain. 
Used of a contract of marriage, as well as 
any other. Spelled, also, Avvha, Arve. Cal- 
vin. 


ARRACK. A spirit procured from dis- 


¢ane, und imported from India. 


ARRAIGN. In criminal practice. 
To bring a prisoner to the bar of the court to 
answer the matter charged upon him in the 
indictment, The arraignment of a prisoner 
consists of calling upon him by name, and 
treading to him the indictment, (in the En- 
glish tongue,) anddemanding of him whether 
he be guilty or not guilty, and entering his 
pies. 

In old English law. To order, or set in 
order; to conduct in an orderly manner; to 
prepare for trial. Yo arraign an ussise was 
to cause the tenant to be called to make the 
pluint, and to set the cause in such order as 
the lenant might be enforced to answer there- 
unto, Litt. § 442; Co. Litt. 2628. 


ARRAIGNMENT. In criminal prac- 
tice. Calling the defendant to the bar of the 
court, to answer the accusation contained in 
the indictment. 


ARRAIGNS, CLERK OF. In English 
law. An assistant to the clerk of assise. 


ARRAMEUR. In old French law, An 
officer employed to superintend the loading 
of vessels, and the safe stowage of the cargo, 
1 Pet. Adm. Append. XXYV. 


ARRAS. InSpanishlaw. The donation 
which the husband makes to his wife, by rea- 
gon or on account of marriage, and in con- 
sideration of the dote, or portion, which he 
receives from her. Aso & M. Inst. b. 1, t. 
ee 0. 


tillation of the cocon-nut tree, rice, or sugar- | 


89 ARREST 

ARRAY. The whole body of jurors gum- 
moned to attend a court, as they are arrayed 
or arranged on the panel. Duane, Abr, In- 
dex; 1 Chit. Crim. Law, 536; Com. Dig. 
“Challenge,” B. 

A ranking, or setting forth in order; the 
order in which jurors’ names are ranked in 
the panel containing them. Co. Litt. 156a; 
8 Bl, Comm. 359. 


ARREARS, or ARREARAGES, 
Money unpaid at the due time, as rent be- 
hind; the remainder due after payment of a 
part of an account; money in the hands of 
an accounting party. Cowell. 


ARRECT. To accuse or charge with an 
offense. Arrectati, accused or suspected 
persons. 


ARRENDAMIENTO. In Spanish law. 
The contract of letting and hiring an estate 
or land, (keredad.) White, Recop. b. 2, tit. 
14, ¢. 1, 


ARREST. In criminal practice. The 
stopping, seizing, or apprehending a person 
by lawful authorify; the act of laying hands 
upon a person for the purpose of taking his 
body into custody of the law; the restraining 
of the liberty of a man’s person in order to 
compel obedience to the order of a court of 
justice, or to prevent the commission of a 
crime, or to insure that a person charged or 
suspected of a crime may be forthcoming to 
answer it. 

Arrest is well described in the old books 
as “the beginning of imprisonment, when a 
man is first taken and restrained of bis liber- 
ty, by power of a lawful warrant.” 2 Shep. 
Abr. 209; Wood, Inst. Com. Law, 575. 

In civil practice. The apprehension of 
a person by virtue of a lawful authority to 
answer the demand against him in a civil ac- 
tion. 


In admiralty practice. In admiralty ac- 
tions a skip or cargo is arrested whien the 
marshal has served the writ in an action in 
vem. Williams & B. Adm. Jur. 193. 

Synonyms distinguished. The term “ap- 
prehension” seems to be more peculiarly 
appropriate to seizure on criminal process; 
while “arrest” may apply to either a civil or 
criminal action, but is perhaps better con- 
fined to the former. 

As ordinarily used, the terms “arrest” and “at- 
tachment” coincide in meaning to some extent, 
though in strictness, as a distinction, an arrest 
may be said to be the act resulting from the sery- 


ice of an attachment; and,in the more extended 
sense which is sometimes given to attachment, in- 


ARREST 


eluding the act of taking, it would seam to differ 
from arrest, in that itis more peculiarly applica- 
ble to a taking of property, while arrest is more 
commonly used in speaking of persons. Bouvier, 

By arrest is to be understood to take the party 
into custody. To commit is the separate and dis- 
tinct act of carrying the party to prison, after hay- 
ing taken him into custody by force of the execu- 
tion. 1 Meteo. (Mass.) 503, F 


ARREST OF INQUEST. Pleading in 
arrest of taking the inquest upon a fermer 
issue, and showing cause why an inquest 
should not be taken. 


ARREST OF JUDGMENT. In prac- 
tice, The act of staying a judgment, or re- 
fusing to render judgment in an action at 
law, after verdict, tor some matter intrinsic 
appearing on the face of the record, which 
would render the judzment, if given, erro- 
neous or reversible. 3 131. Comm. 393; 3 
Steph. Comm. 628; 2 Tidd, Pr. 918. 


ARRESTANDIS BONIS NE DISSI- 
PENTUR. In old English law. A writ 
which lay for @ person wiiose cattle or goods 
were taken by another, who during a contest 
was likely to make away with them, and who 
had not the ability to render satisfaction, 
Reg. Orig. 126. 


ARRESTANDO IPSUM QUI PECU- 
NIAM RECEPIT. In old English law. A 
writ which issued for apprehending a person 
who had taken the king’s prest money to serve 
in the wars, and then hid himself in order to 
avoid going. 


ARRESTATIO. In old Englishlaw, An 
arrest, (q. 0.) 


ARRESTER. In Scotch law. The per- 
son in whose hands the movables of another, 
or a debt due to another, are arrested by the 
creditor of the latter by tie process of arrest- 
ment. 2 Kames, Eq. 173, 175. 


ARRESTER. In Scotch law. One who 
snes ont and obtains an arrestment of his 
debtor’s goods or movable obligations. Ersk. 
inst. 8, 6, 1, 


ARRESTMENT. InScotch law. Secur- 
ing a criminal’s person till trial, or that of a 
debtor till he give security judicto sisti. The 
order of a judge, by which he who is debtor 
ina movable obligation to the arrester’s debt- 
or is prohibited to make payment or delivery 
tili the debt due to the arrester be paid or 
secured. Ersk. Inst, 3, 6, 2. 


ARRESTMENT JURISDICTIONIS 
FUNDAND@ CAUSA. In Scoteh law. 
A process to bring a foreigner within the 


90 


| 


ARRIVAL 


jurisdiction of the courts of Scotland. The 
warrant attaches a foreigner’s goods within 
the jurisdiction, and these will not be released 
unless caution or security be given. 


ARRESTO FACTO SUPER BONIS 
MERCATORUM ALIENIGENORUM. 
Jnold Englishlaw. A writ against the goods 
of aliens found within this kingdom, in ree 
ompense of goods taken from « denizen in a 
foreign country, after denial of restitution. 
Reg. Orig. 129. The ancient civilians called 
it “elavigatio,” but by the moderns it is 
termed “reprisalia.” 


ARRET. Fr. A judginent, sentence, or 
decree of a court of competent jurisdiction. 
The term is derived trom the French law, and 
is used in Canada and Louisiana. Saisie arrét 
is an attachment of property in the hands of 
a third person, Code Prac. La. art. 209; 2 
Low. Can. 77; 5 Low. Can. 198, 218. 


ARRETTED. Charged; charging. The 
convening a person charged with a erime be 
fore a judge. Staundef. P. C. 45. It is use 
sometimes for dmputed or laid unto; aa no 
folly may be a@rretied to one under age. 
Cowell. 


ARRHABO, In the civil law. Earnest; 
money given to bind a bargain. Calvin. 


ARRHA, In the civil law. Money or 
other valuable things given by the buyer to 
the seller, for the purpose of evidencing the 
contract; earnest. 


ARRIAGE AND CARRIAGE. In En- 
glish and Scotch law. Indefinite services for- 
merly demandable from tenants, but prolib- 
ited by statute, (20 Geo. IL. ¢. 50, §§ 21, 22.) 
Holthouse; Ersk. Inst. 2, 6, 42. 


ARRIER BAN, A second summons to 
join the lord, addressed to those who had 
neglected the first. A summons of the infe- 
riors or vassals of the lord. Spelman. 


ARRIERE FIEF, or FEHR, In fendal 
law, <A fief or fee dependent on a superior 
one; an inferior fef granted by a vassal of 
the king, out of the flef held by him. Mon- 
tesq. Esprit des Lois, liv. 31, cc. 26, 32. 


ARRIERE VASSAL. In feudal law. 
The vassal of a vassal. 


ARRIVAL. In marine insurance. The 
arrival of a vessel meuns an arrival for pur- 
poses of business, requiring an entry and 
clearance and stay at the port so long as to 
require some of the acts connected with bus- 
inegs, and not merely touching at a port for 


ARRIVAL 


, or to ascertain the stute of the mar- 
being driven in by an adverse wind 
g again as soon as it changes. 9 
372, See, also, 1 Ware, 281; 1 Mason, 
2 Sum. 422; 2 Cush. 453; 15 Fed. ep. 


el arrives at a port of discharge when 
ies, or is brought, to a place where it is in- 
to discharge her, and where is the usnal 
stomury place of discharge. When a vessel 
Ired to one or two ports, and sails for one, 
terminates on her arrival there. If a yes- 
nsured to a particular port of discharge, and 
tined to discharge cargo successively at two 
mt Wharves, docks, or places, within that 
, each being a distinct place for the delivery of 
the risk ends when she has been moored 
uty-four hours in safety at the first place. But 
is destined to one or more places for the de- 
'y of cargo, and delivery or discharge of a por- 
of her cargo is necessary, not by reason of 
haying reached any destined place of delivery, 
ub as & necessary and usual nautical measure, to 
able her to reach such usual and destined place 
‘delivery, she cannot properly be considered as 
ng arrived at the usual aud customary place 
discharge, when she is atanchor forthe purpose 
of using such means as will better enable ber 
reach it. if she cannot get to the destined and 
ual place of discharge in the port because she is 
odvep, and must be lightered to get there, and, to 
d in prosecuting the voyage, cargo is thrown 
erboard or put into lighters, such discharge does 
make that the place of arrival; it is only a 
opping-place in the voyage. When the vessel is 
red to a particular port of discharge, arrival 
in the limits of the harbor does not terminate 
the risk, if the place is not one where vessels are 
discharged and voyages completed. The policy 
‘povers the vessel through the port navigation, as 
‘well a8 on the open sea, until she reaches the des- 
tined place.” 1 Holines, 1387. 


ARRIVE. To reach or come to a partic- 
war place of destination by traveling to- 
wards it. 1 Broek. 411, 

Ininsurancelaw. ‘To reach that particular 
place or point in a harbor which is the ulti- 
mate destinulion of a vessel. 2 Cush. 409, 

The words “arrive” and “enter” are not 
Always synonymous; there certainly may be 
an arrival without an actual entry or attempt 


to enter. 5 Mason, 120, 132. See, also, 1 
Brock. 407, 411. 
ARROGATION. Intheeivillaw. The 


_ adoption of a perscn who was of full age or 
sui juris. 1 Browne, Civil & Adm. Law, 
19; Dig. 1, 7, 5; Inst. 1, 11, 3. 


ARRONDISSEMENT. In France, one 
of the subdivisions of a department, 


ARS ET PENSATZA. Burnt and 
weighed. A term formerly applied to money 
tested or assayed by fire and by weighing. 


91 ARTHEL 
ARSENALS. Store-houses for arms; 
dock-yards, magazines, and other military 
stores. 


ARSER IN LE MAIN. Burning in 
the hand. The punishment by burning or 
branding the left thumb of lay offenders who 
claimed and were allowed the benefit of 
clergy, so as to distinguish them in case they 
maile a second claim of clergy. 5 Coke, 41; 
4 Bl. Comm. 367. 


ARSON. Arson, at common law, is the 
act of unlawfully and maliciously burning 
the house of another man. 4 Steph. Comm. 
99; 2 Russ. Crimes, 896; Steph. Crim. Dig. 
298. 

Arson, by the common law, is the willful 
and malicious burning of the house of an- 
other. The word “house,” as here under- 
stood, includes not merely the dwelling-house, 
but all outhouses which are parcel thereof. 
20 Conn. 244. 

Arson is the malicious and willful burning 
of the house or outhouse of another. Code 
Ga. 1882, § 4375. 

Arson is the willful and malicious burning 
of a building with intent to destroy it. Pen. 
Cade Cal. § 447, 


ARSURA. The trial of money by heating 
it after it was coined. 

The loss of weight occasioned by this pro- 
cess, A pound was said to burn so many 
pence (tot ardere denarios) as it lost by the 
fig, Spelman. The term is now obsolete. 


ART. A principle put in practice and ap- 
plied to some art, machine, manufacture, or 
composition of matter, 4 Mason, I. See 
Act Cong. July 8, 1870. 

In the law of patents, this term means a 
useful art or manufacture which is beneticial, 
and whieh is described with exactness in its 
mode of operation. Such an art can be pro- 
tected only in the mode and to the extent 
thus deseribed. 1 Fish. Pat. Cas. 64. See, 
also, 15 How. 267; 7 Wall. 295. 


ART, WORDS OF. Words used in a 
technical sense; Words scientifically fit to 
carry the sense assigned them. 


ART AND PART. In Seotch law. The 
offense committed by one who aids and assists 
the commission of a crime, but who is not 
the principal or chief actor in ils actual com- 
mission. Anaccessary. A principal in the 
second degree. Paters. Comp. 


ARTHEL, ARDHEL, or ARDDELIO. 
To avouch; as if a man were taken with 


ALTICLE 


92 


ARTICLES OF RELIGION 


stolen goods in his possession he was allowed { of the proceedings which corresponds to the 
alawful arthel, i. e., vouchee, to clear him | 


of the felony; but provision waa made against 
it by 28 Hen, VIII. c. 6. Blount. 


ARTICLE. A separate and distinct part 
of an instrument or writing comprising twe 
or more particulars; one of several things 
presented as connected or forming a whole. 

In English eeclesiastical law. <A com- 
olaint exhibited in the ecclesiastical court by 
way of libel. The different parts of a libel, 
responsive allegation, or-counter allegation 
in the eeclesiastical courts. 3 Bl. Comm. 
109. 

In Scotch practice. A subject or mat- 
ter; competent matter. “Article of dittay.” 
1 Broun, 62. A “pointof dittay.” 1 Swint. 
128, 129. 


ARTICLED CLERK, In English law. 
A clerk bound to serve in the oflice of a so- 
licitor in consideration of being instructed 
in the profession. 


ARTICLES. 1. A connected series of 
propositions; a system of rules. The subdi- 
visions of a document, code, book, ete. A 
specification of distinct matters agreed upon 
or established by authority or requiring ju- 
dicial action. 

2. Astatute; as having its provisions artic- 
ulately expressed under distinct heads, Sev- 
eral of the ancient English statutes were 
called “articles,” (artiewlé.) 

3. A system of rules estublished by legal 
authority; as articles of war, articles of the 
navy, articles of faith, (¢. v.) 

4, A contractual document executed be- 
tween parties, containing stipulations or 
terms of agreement; as articles of agreement, 
articles of partuership. 


It is a common practice for persons to enter into 
articles of agreement, preparatory to the execution 
of a formal deed, whereby ttis stipulated that one 
of the parties shall convey to the other certain 
jands, or release his right to them, or execute 
aqme other disposition of them. 

5. In chancery practice. A formal writien 
atatement of objections filed by a party, after 
depositions have been taken, showing ground 
for discrediting the witnesses, 


ARTICLES APPROBATORY. In 
Scotch law. That part of the proceedings 
which corresponds to the answer to tlie charge 
in an English billin chancery. Paters. Comp, 


ARTICLES IMPROBATORY. In 
Scotch Jaw. Articulate averments setting 
forth the facta relied upon. Bell. 


charge in an Enetish bill in chancery to set 
aside a deed. Paters. Comp. The answer 
is called “articles apprebatory.” 


ARTICLES, LORDS OF. A commit 
tee of the Seottish parliament, which, in the 
mode of its election, and by the nature of its 
powers, was caleulated to increase the inliu- 
ence of the crown, and to confer upon iba 
power equivalent to that of a negative befure 
debate. This system appesred inconsistent 
with the freedom of parliament, and at the 
revolution the convention of estates declared 
if a grievance, and accordingly it was sup- 
pressed by Act 1600, c.3. Wharton. 


ARTICLES OF AGREEMENT. A 
written memorandum of the terma of an 
ugreement. See ARTICLES, 4, 


ARTICLES OF ASSOCIATION, Ar- 
ticles subscribed by the members of a joint- 
stock company or corporation organized un- 
der a general law, and which create the cor- 
porate union between them. Such articles 
are in the nature of a partnership agreement, 
and commonly specify the form of organiza- 
tion, amount of capital, kind of business to 
be pursued, location of the company, ete, 
Articles of association are to be distinguished 
from a charter, in that the latter is a grant 
of power from the sovereign or the legisla- 
ture. 


ARTICLES OF CONFEDERATION. 
The name of the instrument embodying the 
compact made between the thirteen original 
states of the Union, before the adoption of 
the present constitution, 


ARTICLES OF FAITH. In English 
law. The system of faith of the Church of 
England, more commonly known as the 
“Thirty-Nine Articles.” 


ARTICLES OF IMPEACHMENT, A 
formal written allegation of the causes for 
impeachment; answering the same office as 
an indictment in an ordinary criminal pre 
ceeding. 


ARTICLES OF PARTNERSHIP. A 
written agreement by which the parties en- 
ter into a copartnership upon the terms and 
conditions therein stipulated. 


ARTICLES OF RELIGION, In En- 
glish ecclesiastical law, Commonly called 
the “Thirty-Nine Articles;” a body of divin- 
ity drawn up by the convocation in 7563, and 


That part | confirmed by James I. 


ss} 


ARTICLES OF ROUP 


ARTICLES OF ROUP. In Scotch law. 
‘terms and conditions uader which prop- 
prty is sold at auction. 


In Scotch law. 
Paters. Conip. 


ARTICLES OF SET. 
An agreement for a lease. 


ARTICLES OF THE CLERGY. The 
title of a statute passed in the ninth year of 
Edward II. for the purpose of adjusting and 
settiins the great questions of cognizance 
then existing between the ecclesiastical and 
temporal courts. 2 Reeve, Hist. Eng. Law, 
291-296. 


ARTICLES OF THE NAVY. A sys- 
tem of rules prescribed by act of parliament 
for the government of the English navy; 
_ also, in the United States, there are articles 
for the government of the navy. 


ARTICLES OF THE PEACH. A 
complaint made or exhibited to a court by a 
person who makes oath that he isin fear of 
death or bodily harm from someone who has 
‘threatened or attempted to do him injury. 
The court may thereupon order the person 
complained of to find sureties for the peace, 
dnd, in defaull, may commit him to prison. 
4 Bl. Comm. 255. 


ARTICLES GCF UNION. In English 
law. Articles agreod to, A. D. 1707, by the 
arliaments of Engiane and Scotland, for the 
ion ef the two kingdoms. They were 
twenty-five in number. 1 Bl. Comm. 96. 


ARTICLES OF WAR. Codes framed 
for the government of a nation’s army are 
‘eominonly thus called. 


ARTICULATE ADJUDICATION. In 
Beotch law. Where the creditor holds several 
distinct debts, a separate adjudication for each 
eiaim is ths called, 


ARTICULATELY. Article by article; 
by distinct clauses or articles; by separate 
propositions. 


ARTICULI. Lat. Articies; items or 
heads. A term applied to some old English 
tatules, and occasionally to treatises. 


ARTICULI CLERI. Articles of the 
clergy, (g- 2.) ' 


ARTICULI DE MONETA. Articles 
concerning money, or the currency. The 
title of a statute passed in the twentieth year 
of Edward I, 2 Reeve, Hist. Eng. law, 
228; Crabb, Eng. Law, (Amer. Ed.) 167. 


98 


ARVIL-SUPPER 


ARTICULI MAGNA CHART. The 
preliminary articles, forty-nine in number, 
upon which the Magna Charta was founded. 


ARTICULI SUPER CHARTAS. Ar- 
ticles upon Lhe charters. The titleof astatute 
passed in the twenty-eighth year of Edward 
I. st. 3, confirming or enlarging many par- 
ticulars in Jfagna Charta, and the Charta 
de Foresta, and appointing a method for en- 
forcing the observance of them, and for the 
punisliment of offenders. 2 Reeve, Hist. 
Eng. Law, 108, 285. 


ARTICULO MORTIS. (Or more com- 
monly in articulo mortis.) In the article of 
death; at the point of death. 


ARTIFICER. One who buys goods in 
order to reduce them, by his own art or in- 
dustry, into other forms, and then to sell 
them. 3 ‘T. B. Mon. 335. 

One who is actually and personally engaged 
or emploved to do work of a mechanical or 
physical character, not including one who 
takes contracts fer labor to be performed by 
others, 7 Ei. & Bl. 135. 

One who is master of his art, and whose 
employment consists chiefly in manual labor. 
Wharton; Cunningham. 


ARTIFICIAL, Created by art, or by 
law; existing only by foree of or in contem- 
plation of law, 


ARTIFICIAL PERSONS. Persons cre- 
ated and devised by human laws for the pur- 
poses of society and government, as distin- 
guished from natural persons. Corporations 
ure exatmplea of .artificial persons. 1 BI. 
Comm. 123. 


ARTIFICIAL PRESUMPTIONS, Al- 
so called “legal presumptions;” those which 
derive their force and effect from the law, 
rather than their natural tendency to produce 
belief. 3 Starkie, Ev. 1235. 


ARTIFICIALLY. Technically; scien- 
tifcally; using terms of art. <A will or con- 
tract is described as “artificially” drawn if 
it ig couched in apt and technical phrases 
and exhibits a scientific arrangement. 


ARURA, An old English iaw term, sig- 
nifying a day’s work in plowing. 


ARVIL-SUPPER. A feast or entertain- 
ment made at a funeral in the north of Eng- 
land; avvil bread is bread delivered to tha 
poor at funeral solemnilies, and arvél, arval, 
or arfal, the burial or funeral rites. Cowell. 


AS 


AS. Tat. In the Reman and civil law. 
A pound weight; andacoin originally weigh- 
ing a pound, (called also “libra;”) divided 
into twelve parts, called “uneie.” 

Any integral sum, subject to division in 
certain proportions. Frequently applied in 
the civil law to inheritances; the whole in- 
heritance being termed “as,” and its several 
proportionate parts “seatans,” “quadrans,” 
etc. Burrill. 

The term “as,” and the multiples of its 
twneie, were also used to denote the rates of 
interest. 2 Bl. Comm. 462, note m. 


AS AGAINST; AS BETWERW, These 
words contrast the relative position of two 
persons, with a tacit reference to a different 
relationship Letween one of them and a third 
person. For instance, the temporary bailee 
ef a chattel is entitied to it as between him- 
self and a sLranger, or as against a stranger; 
reference being made by this form of words 
to the rights of the bailor. Wharton. 


ASCEND. To go up; to pass up or up- 
wards; to go or pass in the ascending line. 
4 Kent, Comm. 393, 397. 


ASCENDANTS. Persons with whom 
one is related in the ascending line; one’s 
parents, grandparents, great-erandparents, 
ete. 


ASCENDIENTES. In Spanish law. 
Ascendants; ascending heirs; heirs in the 
ascending line. Schm. Civil Law, 259. 


ASCENT. Passage upwards; the trans- 
mission of an estate from the ancestor to the 
heir in the ascending line. See 4 Kent, 
Comm. 393, 397. 


ASCERTAIN. To fix; to render certain 
or definite; to estimate and determine; to 
clear of doubt or obscurity. 


ASCRIPTITIUS. In Roman law. A 
foreigner who had been registered and nat- 
uralized in the colony in which he resided, 
Cod. 11, 47. 


ASPECT. View; object; possibility. Im- 
plies the existence of alternatives. Used in 
the phrases “bill with a double aspect” and 
“contingency with a double aspect.” 


ASPHYXIA. In medical jurisprudence. 
Swooning, suspended animation, produced 


by the non-conyersion of the venous bleed of i § 457, 


the lungs into arterial. 


ASPORTATION. The removalof things 
from one place to another. The carrying 
away of goods; one of the circumstances 


94 ASSAULT 


requisite to constitute the offense of larceny. 
4 Bl. Comm. 231. 


ASPORTAVIT. Hecarriel away. Some- 
times uses as a noun to denote a carrying 
away. An “asportavit of personal chat- 
tels.” 2H. Bl. 4. 


ASSACH. In old Welsh law. 
made by compurgators, Brown. 


An oath 


ASSART. In English law. The offenas 
committed in the forest, by pulling up tiie 
trees by the roots that are thickets and cov. 
erts for deer, and making the ground plain 
as arable land. It differs from waste, in that 
waste is the cutting down of coverts which 
may grow again, whereas assart is the pluck- 
ing them up by the roots and utterly deatroy- 
ing them, so that they can never afterward 
grow, This is not an offense if done with 
license to convert forest into tillage ground. 
Consult Manwood's Forest Laws, pt. I p. 
171. Wharton. 


ASSASSINATION. Murder commitied 
for hire, without provocation or cause of re 
sentment given to the murderer by tho per- — 
son upon whom the crime is committed. 
Ersk. Inst. 4, 4, 45. 

A murder committed treacherously, or by 
stealth or surprise, or by lying in wait. 


ASSATH. An ancient custom in Wales, 
by which a person accused of erime could 
clear himself by the oaths of three hundred 
men. Jt wag abolished by St. 1 Hen. Y.¢ 
6, Cowell; Spelman. 


ASSAULT. An unlawful attempt or of 
fer, on the part of one man, with force or 
violence, to inflict a bodily hurt upon another, 

An attempt or cifer to beat another, with- 
out touching him; as if one lifts up his cane 
or his fist in a threatening manner at another; 
or strikes ut him, but misses bim, 3 Bh 
Comm. 120; 3 Steph. Comm. 469, 

Aggravated assauit is one committed with 
the intention of committing some additional 
crime; or one attended with circumstances of 
peculiar outrage or atrocity. Simple assaulé 
is one committed with no intention to do any 
other injury. 

An assault is an unlawful attempt, coupled with 
a present ability, to commit a violent injury on the 
person of another. Pen. Code Cal. § 240. 


An assauit isan attempt io commit a violant in- 
jury on the person of another. Code Ga 1882, 


Ax assault is any willful and unlawful attemptor 
offer, with force or violence, to do a corporal burt 
to ancther, Pen. Code Dak, § 305. 

An assault is an offer or an attempt to do a cor- 
poral injury to another; as by striking at him with 


ASSAULT 


‘Whe nand, or with a stick, or by shaking the fist at 
‘bin, or presenting a gun or other weapon within 
anch distances as that a hurt might be given, or 
drawing a sword and brandishing itin a menacing 
“hunner; provided the act is done withintent to do 
#0me corporal hurt. 2 Wash. ©. ©. 435. 

An assault is an attempt, with force or violence, 
todo a corporal injury to another, and mey consist’ 
of any aei tending to such corporal injury, eccom- 
panied with such circumsiunces as denote at the 
time an iutention, coupled with the present abil- 
ity, of using actual violence against the person. 
Hit, $51. 

An assault isan attempt or offer, with force or 
violenco, todo a corporal hurt to another, whether 
from malice or wantonness, with such cireumstan- 
tes as denote, at the time, an intention to do it, 


tion into effect. 48 Ala. 854. 

An assauitis an intentional attempt, by violence, 
todo an injury to the person of another. It must 
be intentional: for, if it can be collected, notwith- 
atinding appearances to the coutrary, that there is 
hota present purpose to do an injury, there is no 
assuult, 1 Tred. 127, 

In order to constitute an assault there must be 
fomething more than amere menace. There must 
be yioleace begun to be executed, But, where 
there is a clear inteut to commit violence, accom- 
panied by acts which if not interrupted will be fol- 
lowed by personal injury, the violence is com- 
monced and the assault is complete. 27 Cal. 633. 


ASSAY. The proof or trial, by chemical 
experiments, of the purity or fineness of met- 
ils,—particularly of the precious metals, gold 
and gilver, 

A trialof weights and measures by a stand- 
ard; as by the constituted authorities, clerks 
of markets, etc. Reg. Orig. 280. 

A trial or examination of certain commod- 
ities, as bread, cloths, etc. Cowell; Blount. 


ASSAY OFFICH. The staif of persons 
by whom {or the building in which) the pro- 
cess of assaying gold and silver, required by 
government, incidental to maintaining the 
edinage, is conducted. 


ASSAYVER, One whose business it is to 
make assays of the precious metals. 


ASSAYER OF THE KING. An offi- 
cer of tha royal mint, appointed by St. 2 Hen. 
V1. c¢. 12, who received and tested the bull- 
fon taken in for coining; also called “assay- 
alor regis.” Cowell; Termes de la Ley. 

ASSECURARE. To assure, or make se- 


cure by pledges, or any solemn interposition 
of faith, Cowell; Spelman. 


ASSECURATION. In European law. 
Assurance; insurance of a vessel, freight, or 
cargo. J erriere. ‘ 


ASSECURATOR. In maritime law, 
An insurer, (a@versor pericudi.) Loce. de 
Jure Mar. Nb. 2, « 5, § 10. 


95 


_ coupled with a prosent ability to carry such ipten- — 


ASSESSED 


ASSHDATION. In Scotch aw. An old 
term, used indiscriminately to signify a lease 
or feu-right. ell; Ersk. Inst. 2, 6, 20. 


ASSEMBLY. The concourse or meeting 
together of a considerable number of persons 
at the same place. Also the persons so 
gathered, 

Popular assemblies are those where the 
people meet to deliberate upon their rights; 
these are guaranteed by the constitution. 
Const. U.S. Amend. art. 1, 

The lower or more numerous branch of the 
legislature in many of the states is also called 
the “Assembly” or “House of Assembly,” 
bul the term seems to be an appropriate one 
to designate any political meeting required to 
be held by law. 


ASSEMBLY GENERAL. The highest 
ecclesiastical court in Scotland, composed of 
a representation of the ministers and elders 
of the church, regulated by Act 5th Assem. 
1694, 

ASSEMBLY, UNLAWFUL, In crimi- 
nal law. The assembling of three or more 
persons together to do an unlawful act, who 
separate without actually doing it, or making 
any motion towards it. 3 Inst. 176; 4 Bl. 
Comm. 146, 

It differs from a riot or rout, because in 
each of the latter cases there is some act done 
besides the simple meeting, See 1 Ired. 30; 
9 Oar. & BP. 91, 451; 5 Car. & P. 154; 1 


| Bish. Crim. Law, § 536; 2 Bish. Crim. Law, | 


S$ 1256, 1259. 


ASSENT. Compliance; approval of some- 
thing done; a declaration of willingness to do 
something in compliance with a request. 


ASSERTORY COVENANT. One 
which aftirms that a particular state of facts 
exists; an aflirming promise under seal. 


ASSESS. 1. To ascertain, adjust, and 
settle tlie respective shares to be contributed 
by several persons toward an object beneiicial 
to them all, in proportion to the benefit re- 
ecived. 

2. To adjust or fix the proportion of a tax 
which each person, of several liable to it, tas 
to pay; to apportion a tax among several; to 
distribute taxation in a proportion founded 
on the proportion of burden and benefit. 

3. To place a valuation upon property for 
the purpose of apportioning a tax. 

4. To impose a pecuniary payment upon 
persons or properiy; to tax. 


ASSESSED. Where the charter of a cor- 
poration provides for the payment by it of a 


ASSESSMENT 


state tax, and contains a proviso that “no 
otlier lax or impost shal! be levied or assessed 
upon the said company,” the word “assessed” 
in the proviso cannot have the force and 
meaning of describing special levies for pub- 
lic improvements, but is used{merely to de- 
scribe the act of levying the tax or impost. 
42 N. J. Law, 97. 


ASSESSMENT. In a general sense, de- 
notes the process of ascertaining and adjust- 
ing the shares respectively to be contributed 
by several persons towards a common benefi- 
cial object according to the benefit received. 


In taxation. The listing and valuation 
of property for the purpose of apportioning 
a tax upon it, either according to value alone 
or in proportion to benelit received. Also 
determining the share of a tax to be paid by 
each of many persons; or apportioning the 
entire tax to be levied among the different 
taxable persons, establishing the proportion 
due from each. 


Assessment, as used in juxtaposition with taxa- 
tion in a state constitution, includes all the steps 
necessary to bs tuken in the legitimate exercise of 
the power totax, 4 Neb. 336, 


Assessment is also popularly used as a syn- 
onym for taxation in general,—the authori- 
tative imposition of a rate or duty to be paid. 
But in its technical signification it denotes 
only taxation fora special purpose or local 
improvement; logal taxation, as distinguished 
from general taxativn; taxation on the prin- 
ciple of apportionment according to the rela- 
tion between burden and benefit, 


As distinguished from other kinds of taxation, 
assessments are those special and local impositions 
upon property in the immediate vicinity of munic- 
ipal improvements which are necessary to pay for 
the improvement, and are laid with reference to 
the special benefit which the property is supposed 
to have derived therefrom. 29 Wis. 599. 

Assessment and tax are not synonymous. An 
assessment is doubtless a tax, but the term implies 
soluething more; it implies a tax of a particular 
kind, predicated upon the principle of equivalents, 
or benefits, which are peculiar to the persons or 
property charged therewith, and which are said 
to be assessed or appraised, according to the meas- 
ure or proportion of such equivalents; whereas a 
simple tax is imposed for the purpose of support- 
ing the government generally, without reference 
to any special advantage which may be supposed 
to accrue to the persons taxed. Taxes must be 
levied, without discrimination, equally upon all 
the eubjects of property; whilst assessments are 
only levied upon lands, or some other specific prop- 
erty, the subjects of the supposed benefits; to re- 
pay which the assessment is levied. 1 Handy, 464. 


In corporations. Instalments of the 
money subscribed for shares of stock, called 
for from the subscribers ky the directors, from 
time to time as the company requires money, 


96 


Se re 
a 


ASSETS 


are called “assessments,” or, in En 
“calls.” 

The periodical demands made by a m 
insurance company, under its chartera 
Jaws, upon the makers of premium n 
also denominated “assessments.” 


Of damages. Fixing the amounto 
ages to whieh the successful party in a 
is entitled after an interlocutory judg 
has been taken. 

Assessment of damages is also the 
given to the determination of the sum 
a corporation proposing to take lands 
public use must pay in satisfaction of 
mand proved or the value taken. 


In insurance. An apportionment 
in general average upon the various ar: 
and interests at risk, according to their 
at the time and place of being in safety, f 
contribution for damage and sacrifices pur 
posely made, and expenses incurred for 
cape from impending common peril. 2 
Ins. c. xv. 


ASSESSOR. An officer chosen or 
pointed to appraise, value, or assess prope 


In civil and Scotch law. Persons 
skilled in law, selected to advise the jul 
of the inferior courts. Bell; Dig, 1, 2 
Cod. 1, 51. 

A person learned in some particular science 
or industry, who sits with the judge on the 
trial of a cause requiring such special knowl 
edge and gives his advice. 

In England it is the practice in admiralty 
business to call in assessors, in cases invol¥- 
ing questions of navigation or seamanship. 
They are called “nautical assessors,” and ara 
always Brethren of the Trinity House. 


ASSETS. In probate law. Propertyot 
a decedent available for the payment of debts 
and legacies; the estate coming to the heir 
or personal representative which is charge 
able, in law or equity, with the obligations 
which such heir or representative is required, 
in his representative capacity, to discharge, 

In an accurate and iegal sense, all the personal 
property of the deceased which is of a salable pat 
ure, and may be converted into ready money, is 
deemed assets. But the word is not confined to 
such property; for all other property of the de 
ceased which is chargeable with his debts or lega 
cies, and is applicable to that purpose, is, in @ 
large sense, assets. 1 Story, Eq. Jur. § 531, 

Assets per descent, That portion of the am 
eestor’s estate which descends to the heir, 
and which is sufficient to charge him, as far 
as it goes, with the specialty debts of bis an- 
cestors. 2 Williams, Ex’rs, 1011. 


ASSETS 


Hquitable assets. The terin includes eq- 
‘nities of any sort ace rights and claims which 
are available only by the aid of a court of eq- 
‘nity, and which are to be divided, part passu, 
among all the creditors. 

Legal assets. Such as constitute the fund, 
for the payment of debts, that can be reached 
in an action at law. 

Personal assets. Goods and persunal ehat- 
tals to which the executor or administrator 
is entitled. 

Teal assets. Such as descend to the heir, 
ag an estate in fee-simple. 


In commercial law. The aggregate 
of available property, stock in trade, cash, 
ete., belonging to a merchant or mercantile 
tompany. 

The word “assets, "though more generally used 
to dencte everything which comes to the represen- 
fatives of 4 deceased person, yet is by no means 
confined to that use, but has come to signify every- 
thing which can be made available for the payment 
of debts, whether belonging to the estate of a de- 
ceased person or not. Hence we speak of the as- 
acts of s bank or other monied corporation, the as- 
sets of an insolvent debtor, and the assets of an in- 
dividual or private copartnership; and we always 
use this word when we speak of the means which 
& party has, as compared with his liabilities or 
debts. 26 Conn. 449, 

The property or effects of a bankrupt or 
Insolvent, applicable to the payment of his 

The term “assets” includes all property of every 
kind and nature, chargeable with the debts of the 
bankrupt, that comes inte the hands of and under 
the control of the assignee; and the value thereof 
is not to be considered a less sum than that actu- 
ally realized out of said property, and received by 
the assiguec forit. 16N, B. R. 351. 


ASSETS ENTRE MAINS, L. Fr. 
Assets in hand; assets in the hands of exec- 
ators or administrators, applicable for the 
payment of debts. Termes de la Ley; 2 Bl. 
Comm, 510; 1 Crabb, Real Prop. 23. 


ASSEVERATION. An affirmation; a 
positive assertion; a solemn declaration. 
This word is seldom, if ever, used for a dec- 
laration made under oath, but denotes a dec- 
laration accompanied with solemnity or an 
appeal to conscience, 


ASSEWIARE. To draw or drain water 
from marsh grounds. Cowell, 


ASSIGN, vo. Inconveyancing. To make 
or set over to another; to transfer; as to as- 
ign property, or some interest therein. Cow- 
ell; 2 Bl. Comm. 826. 

In practice. ‘To appoint, allot, select, or 
‘designate for a particular purpose, or duty. 
AM, DICT.LAW—7 


97 


eS Oe SS Se __. eee 


ASSIGNMENT 


Thus, in England, justices ara said to be 
“assiyned to take the assises,” “assigned 
to hold pleas,” “assigned to make gaol de- 
livery,” “assigned to keep the peace,” etc, 
St. Westm. 2, c. 30; Reg. Orig. 68, 69; 3 Bl. 
Comm. 58, 59, 358; 1 Bi, Comm. 351. 

To transfer persons, as a sheriff ig said to 
assign prisoners in his custody. 

To point at, or point out; to set forth, or 
specify; to mark out or designate; as to wzs- 
sign errors on a writ of error; to assign 
breaches of acovenant. 2 Tidd, Pr. 1168; 1 
Tidd, 686. 


ASSIGNABLE. That may be assigned 
or transferred; transferable; negotiable, as 
a bill of exchange. Comb. 176; Story, Bills, 
SU. 


ASSIGNATION. A Seotch law term 
equivalent to assignment, (g. .) 


Assignatus utitur jure auctoris. An 
assignee uses the right of his principal; an 
assignee is clothed with the rights of his 


principal. Halk. Max. p. 14; Broom, Max. 
465, 

ASSIGNAY, In Scotch law. An as- 
signee, , 


ASSIGNEE. A person to whom an as- 
signment is made. The term is commonly 
used in reference to personal property; but it 
is not incorrect, in some cases, to apply it to 
Tealty, ¢. 9., “assignee of the reversion.” 

Assignee in fact is one to whom an assign- 
ment has been made in fact by the party hay- 
ing the right, 

Assignee in faw is one in whom the law 
vests the right; as an executor or administra- 
tor. 

The word has a special and distinclive use 
as employed to designale one to whom, un- 
der an insolvent or bankrupt law, the whole 
estale of a debtor is transferred to be admin- 
istered for the benefit of creditors. 


In old law. <A person deputed or ap- 
pointed by another to do any act, or perform 
any business. Blount. An assignee, how- 
ever, Was distinguished from a deputy, being 
said to occupy # thing in hisown right, while 
a deputy acted in right of another. Cowell. 


ASSIGNMENT. In contracts. 1. The 
act by which one person transfers to another, 
or causes to vest in that other, the whole of the 
right, interest, gr property which he has in 
any realty or personalty, in possession or in 
action, or any share, interest, or subsidiary 
estate therein. More particularly, a written 


i 


ASSIGNMENT 


transfor of property, as distinguished from a , 
transter by mere delivery. 

2. Ina narrewer sense, the transfer or mak- 
ing over of the estate, right, or title which 
ene has in lands and tenements; and, in an 
especially technical sense, the transfer of the 
unexpired residue of a term or estate for life 
or years. : 

Assignment does notinciude testamentary trans- 
fers. VTheidea of an assignment is essentially that 
of a transfer by one existing party to another ex- 
isting party of some species of property or valua- 


ble interest, except in the case of an executor. 34 
N.Y. 447, 


3. A transfer or making over by a debtor of 
all his property and effects to one or more 
assignees in trust for the benefit of his ered- 
itors. 2 Story, Eq. Jur. § 1036. 

4. The instruwent or writing by which 
such a transfer of property is made, 

5. A transfer of a bill, note, or check, not 
negotiable. 

6. In bankruptey proceedings, the word | 
designates the setting over or transfer of the 
bankrupt’s estate to the assiguee. 


ASSIGNMENT FOR BENEFIT OF 
CREDITORS. An assignment whereby a 
debter, generally an insolvent, transfers to 
another his property, in trust tu pay his debts 
or apply the property upon their payment. 


ASSIGNMENT OF DOWER. Ascer- 
taining a widow’s right of dower by laying 
out or marking off one-third of her deceased 
husband’s lands, and setting off the sane for 
her use during life. 


ASSIGNMENT OF ERRORS. In 
practice. The statement of the plaintiff's 
case on a writ of error, setting forth the er- 
rors complained of; corresponding with the 
declaration in an ordinary action. 2 Tidd, 
Pr. 1168; 3 Steph. Comm, 644. 


There is not, in the strict common-law sense of 
the term, any assignment of errors required to be 
filed by the appellant. Whatis meant vy the term, 
as heretofore used by this court, is that a specifi- 
eation must be filed of the errors upon which the 
appellant will rely, with such fullness as to give 
aid to the court in the examination of the tran- 
script. 10 Cal. 2938. 


ASSIGNMENT WITH PREFER- 
ENCES. An assiguinent for the benelit of 
ereditors, with directions to the assignee to 
prefer a specified creditor or class of credit- 
ors, by paying their claims in full before the 
others receive any dividend, or in some other 
manner. More usually termed a “preferen- 
tial assignment.” | 


98 


'gise of Clarendon. 


ASSISA DE NOCUMENTO 


ASSIGNOR. Ore who makes an assign- 
ment of any kind; one who assigns or trans- 
fers property. 


ASSIGNS. Assignees; those to whom 
property shall have been transferred. Now 
seldom used except in the phrase, in deeds, 
“heirs, administrators, and assigns.” 8 Ii. 
I. 36. 


ASSISA. iInold English and Scotch law. 
An assise; a kind of jury or inquest; a wril; 
a sitting of a court; an ordinance or statute; 
a fixed or specitic time, number, quantity, 
quality, price, or weight; a tribute, fine, or 
tax; a real action; the name of a writ. See 
ASSISE. 


ASSISA ARMORUM. Assise of arms, 
A statute or ordinance requiring the keep- 
ing of arms for the common defense. Tule, 


, Com. Law, ec, 11. 


ASSISA CADERE. To failin the assise; 
i. 2., to be nonsuited. Cowell; 3 Bl, Comm. 
402, 


ASSISA CADIT IN JURATUM. The 
assise falls (turns) into a jury; hence to sub- 
mit a controversy to trial by jury. 


ASSISA CONTINUANDA. An ancient 
writ addressed to the justices of assise for 
the continuation of a cause, when certain 
facts put in issue could not have been proved 
in time by the party alleging them. Reg. 
Orig. 217. : 


ASSISA DE CLARENDON. The as. 
A statute or ordinance 
passed in the tenth year of Henry II., by 
which those that were accused of any heinous 
crime, and not able to purge themselves, but 
must abjure the realm, had liberty of forty 
days to stay and try what succor they could 
get of their friends towards their sustenance 
in exile. Bract. fol. 186; Co. Litt. 159a; 
Cowell. 


ASSISA DE FORESTA. Assise of the 
forest; a statute concerning orders to be ob- 
served in the royal forests. 


ASSISA DE MENSURIS, 
measures. A common rule for weights and 
measures, established throughout England 


| by Richard I, in the eighth year of his reign. 


Hale, Com. Law, c. 7. 


ASSISA DE NOCUMENTO, An as 
sise of nuisance; a writ to abate or redress a 
nuisance. 


* 


Assise of | 


ASSISA DE UTRUM 


ASSISA DE UTRUM. An obsolete 
writ, which lay for the parson of a church 
Whose predecessor had alienated the land and 
tenis of it, ' 


ASSISA FRISCH FORTIZ. Assise 
of fresh force, which see. , 


ASSISA MORTIS D’ANCESTORIS, 
Assise of mort d’ancestor, which see. 


ASSISA NOV DISSEYSINA As- 
sise of novel disscisin, which see. 


ASSISA PANIS ET CHREVISLA, 
Assise of bread and ale, or beer. The name 
of astatute passed in the fifty-first year of 
Uenry III., containing regulations for the 
sale of bread and ale; sometimes called the 
“statute of bread and ale.” Co. Litt. 1598; 
2 Reeve, Hist. Eng. Law, 56; Cowell; Bract. 
fol, 155. 


ASSISA PROROGANDA. An obsolete 
writ, which was directed to the judges as- 
Signed to take assises, to stay proceedings, by 
Teason of a party to them being employed in 
the king’s business. Reg. Orig. 208. 


ASSISA ULTIMA PRAESENTATIO- 
NIS. Assise of darrein presentment, (gq. v.} 


ASSISA VENALIUM. The assise of sal- 
able commodities, or of things exposed for 
sale. 


ASSISEH, or ASSIZE. 1. An ancient 
species of court, consisting of a certain num- 
ber of men, usually twelve, who were sum- 
moned together to try a disputed cause, per- 
forming the functions of a jury, except that 
they gave a verdict from their own investi- 
gation and knowledge and not upon evidence 
Adduced. From the fact that they sat to- 
gether, (assideo,) they were called the ‘“‘as- 
gise.” See Bract. 4, 1, 6; Co. Litt. 1538, 
1590. 

A court composed of an assembly of knights 
and other substantial men, with the baron or 
justice, in a certain place, ab an appointed 
time. Grand Cou. ec. 24, 25. 

2, The verdict or judgment of the jurors 
or recognitors of assise. 8 Bl. Comm. 57, 59, 

3. In modern English law, the name “as- 
bises” or “assizes” is given to the court, time, 
or place where the judges of assise and nist 
prius, who are sent by special commission 
from the crown on circuits through the king- 
dom, proceed to take Indictinents, and to try 
such disputed causes issuing out of the courts 
at Westminster as are then ready for trial, 
with the assistance of a jury from the par- 


99 


ieee” 
LTE eirreEEnSEESSnEIIaEEEESEEEEEEE EERE EEE 


ASSISE OF NUISANCE 


ticular county; the regular sessions of the 
judges ab nist pris. 

4. Anything reduced to a certainty in re- 
spect to time, number, quantity, quality, 
weight, measure, etc. Spelman. 

5. An ordinance, statute, or regulation. 
Spelman gives this meaning of the word the 
first place among his definitions, observing 
that statutes were in England called “as- 
sises” down to the reign of Henry III. 

6. A species of writ, or real action, said to 
have been invented by Glanville, chief jus- 
tice to Henry I1., and having for its object 
to determine the right of possession of Jands, 
and to recover the possession. 3 BJ. Con. 
184, 135. 

7. The whole proceedings in court upon a 
writ of assise. Co. Litt. 1598. The verdict 
or finding of the jury upon sucha writ. 3 
Bl. Comm. 57. 


ASSISE OF CLARENDON. 
sISA DE CLARENDON. 


ASSISH OF DARREIN PRESENT- 
MENT. A writ of assise which formerly 
lay when a man or his ancestors under whom 
he claimed presented a clerk toa benelica, 
who was instituted, and afterwards, upon 
the next avoidance, a stranger presented a 
clerk and thereby disturbed the real patron. 
8 Bl. Comm. 245; St. 18 Edw. i. (Westm. 2) 
ce. 5. It has given way te the remedy by 
gquare impedit. 


ASSISH OF FRESH FORCE. In old 
English practice. A writ which lay by the 
usage and custom of a city or borough, where 
aman was disseised of his lands and tene- 
ments in such city or borough. It was called 
“fresh foree,” because it was to be sued 
within forty days after the party’s title ac- 
crued to him. Fitzh. Nat. Brey. 7 C. 


ASSISH OF MORT D’ANCESTOR. 
A real action which lay to recover land of 
which a person had been deprived on the 
death of his ancestor by the abatement or in- 
trusion of a stranger. 3 Bl. Comm. 185; Co. 
Litt. 159a. It was abolished by St. 3 & 4 
Wim. IV. ¢. 27. 


ASSISH OF NOVEL DISSEISIN. A 
writ of assise which lay for the recovery of 
lands or tenements, where the claimant had 
been lately disseised. 


ASSISE OF NUISANCE. A writ of 
assise which lay where a nuisance had been 
committed to the complainant's freehold; 
either for abatement of the nuisance cr for 
damages. 


See As. 


i 


ASSISE OF THE FOREST 


ASSISH OF THE FOREST. A stat- 
ute touching orders to be observed in the 
king’s forests, Manwood, 30. 


ASSISE RENTS. The certain estab- 
lished rents of the freeholders and ancient 
eopyholders of a manor; 80 called because 
they are assised, or made precise and certain. 


ASSISER. Anassessor; juror; anofficer 
who has the care and oversight of weights 
and measures. 


ASSISORS. InSeotch law. Jurors; the 
persous who formed that kind of court which 
in Scotland was called an “assise,” for the 
purpose of inquiring intoand judging divers 
civil causes, such as perambulations, cogni- 
tions, molestations, purprestures, and other 
mutiers; like jurorgin England. Holthouse, 


ASSISTANCE. The namo of a writ 
which issues from the court of chancery, in 
aid of the execution of a judgment at law, to 
put the complainant into possession of lands 
adjudged to him, when the sheriff cannot 
execute the judgment. 


ASSISTANT JUDGE. A judgeof the 
English court of general or quarter sessions 
in Middlesex. He differs from the other 
justices in being a barrister of ten years’ 
standing, and in being salaried. SU7 & 8 
Viet. c. 71; 22 & 23 Vict. e. 4; Pritch. Quar. 
Sess. dl. 


ASSISUS. Rented or farmed out for a 
specified assise; that is, a payment of a cer- 
tain assessed rent in money or provisions. 


ASSITHMENT. Weregeld or compen- 
sation by a pecuniary mulet. Cowell. 


ASSIZEH. In the practice of the criminal 
courts of Seotland, the fifteen men who de- 
cide on the conviction or acquittal of an ac- 
cused person are called the “assize,” though 
in popular language, and even in statutes, 
they are called the “jury.” Wharton. See 
ASSISE, 


ASSIZES. Sessions of the justices or com- 
missioners of assize. See ASSISE. 


ASSIZES DE JERUSALEM. A code 
of fendal jurisprudence prepared by an as- 
sembly of barons and lords A. D, 1099, after 
the conquest of Jerusalem. 


ASSCOCIATH. An officer in each of the 
English courts of common law, appointed by 
the chief judge of the court, and holding his 
office during good behavior, whose duties 
were tu superintend the entry of causes, to 


100 


a a 


ASSUMPSIT d 


attend the sittings of nisi prius, an 
receive and enter verdicts, and to dray 
the posteas and any orders of nisi 
The associates are now oflicers of theSuap 
Court of Judicature, and are styled “M 
of the Supreme Court.” Wharton. 

A person associated with the judges an 
clerk of assise in the commission of gener 
jail delivery, Mozley & Whitley. 

The term is frequently used of the ju 
of appellate courts, other than the presidit 
judge or chief justice. 


ASSOCIATION. The act of a na 
of persons who unite or join together for sor 
special purpose or business. The union 0 
a company of persons for the transaction of 
designated affairs, or the attainment of some 
common object. 

An unincorporated society; a body of per 
sons united and acting together without 4 
charter, but upon the methods and fornig 
used by incorporated bodies for the prosecute 
tion of some common enterprise. 

In English law. A writ directing cer 
tain persons (usually the clerk and his sub- 
ordinate officers) to associate themselves with 
the justices and sergeants for the purposes of 
taking Lhe assises. 3 Bl. Comm. 59, 60, 


ASSOCIE EN NOM. In French law, 
In a société en commandité an associé en nom 
is one who is liable for the engagements of 
the undertaking to the whole extent of his 
property, This expression arises from the fact 
that the names of the associds so liable figure 
in the firm-name or form part of the socicté 
en nom collectif, Arg. Tr. Merc. Law, 546, 


ASSOIL. Toabsolve; acquit; to set free; 
to deliver from excommunication, St. 1 
Hen. LY. c 7; Cowell. 


ASSOILZIE. In Scotchlaw. To acquit 
the defendant inan action; to find a criminal 
not guilty. 


ASSUME. To undertake; engage; prom- 
ise. 1 Ld. Ray. 122; 4 Coke, 92. 

A stipulation in a deed, accepted by the 
grantee, that he shall “assume” an outstanil- 
ing mortgage on the premises conveyed, is 
broken by a failure to pay the mortgage debt 
wilhin a reasonable tiuie after its maturily, 
12 Cush. 227. 


ASSUMPSIT. Lat. Hea undertook; he 
promised. A promise or engagement by which 
one person assumes or undertakes to do some. 
act or pay something to another. It may ba 
either oral or in writing, but is not under 
seal, It is express if the promisor puts his. 


A>SUMPSIT 1 


gement in distinct and definite language; 
bis implied where the law infers a promise 
hough no formal one has passed) from the 
miduet of the party or the circumstances of 
ie case, 

ti practice. A form of action which lies 
rthe recovery of damages for the non-per- 
mance of a parol or simple contract: or 
acontract that is neither of record nor under 
ul. 7 Term, 351; 3 Johns. Cas, 60. 
The ordinary division of this action is into 
1} common or indebiiatus assumpsit, 
sight for the most part on an implied 
omise; and (2) special assumpsit, founded 
jan express promise, Steph. Pl. 11, 13. 
The action of asswmpsit differs Trom tras« 
ass and trove, which are founded on a tort, 
it upona contract; from covenant and debi, 
ich are appropriute where the ground of 
very is a sealed instrument, or special 
ligation to pay a fixed sum; and from re 
Jevin, which seeks the recovery of specific 
mnerty, if attainable, rather than of dam- 


ce 


ASSURANCE. Inconveyancing. A 
“i or instrument of conveyance. ‘The le- 
@ evidences of the transfer of property are 
England called the “coramon assurances” 
[the kingdom, whereby every man's estate 
Sassuved to him, and all controversies, 
ibis, and difficulties are either prevented 
Fremoved. 2 Li. Comm, 294, 
Tn eontraets, 
te. ‘The term was formerly of very tre- 
ent use in tlie modern sense of insurance, 
wticulariy in English maritime law, and 
il appears in the policies of some eompa- 
but is otherwise seldom seen of late 
ws. There seems to be a Lendency, how- 
yer, to use assitrance for the contracts of 
einsurance companies, and insurance for 
sks Upon property, 


ASSURED. A person who has been in- 

by some insurance company, or under- 
Tiler, against losses or perils mentioned in 
ie policy of insurance. 


ASSURER. <An insurer against certain 
is and dangers; an underwriter; an in- 
unifier. - 


ASSYTHEMEN'T. InScotchlaw. Dam- 
suwarded to the relative of a murdered 
son fram the guilly party, who has not 
tn convictedand punished, Paters. Comp. 


ASTIPULATION. A mutual agree- 
nt, assent, and consent between parties; 
9 a witness or record. 


101 


A making secure; insur-. 


AT LARGE 


ASTITRARIUS HARES. An heir ap- 

parent who has been placed, by conveyance, 

; in possession of his ancestor's estate during 
such atcestor’s life-time, Co. Litt. 8. 


ASTITUTION. An arraignment, (¢, v.) 


ASTRARIUS. In oid English law. A 
householder; belonging to the house; a per- 
son in actual possession of a house, 


ASTRER. Inold Englishlaw. A house- 
holder, or occupant of a house or hearth, 


ASTRICT. InSeotch law. 
@ particular miil. 


ASTRICTION TO A MILL. A servi- 
tude by which grain growing on certain 
lands or brought within them must be ear- 
ried to a certain mill to be ground, a certain 
multure or price being puid for the same. 
Jacob. 


ASTRIAILTET. InSaxon law. A pen- 
alty for a wrong done by one in the king’s 
peace. The offender was to replace the dam- 
age twofold. ° Spelman. 


ASTRUM. A house, or place of habita- 
tion. Bract. fol. 2676; Cowell. 


ASYLUM. 1. A sanctuary, or place of 
refuge and protection, where criminals and 
debtors found sheiter, and from which they 
could not be taken without sacrilege. 6 Neb. 
aol. 

2. Shelter; refuge; protection from the 
hand of justice. The word includes not ouly 
place, but also shelter, security, protection; 
and a fugitive from justice, who has com- 
mitted a criine ina foreign country, “seeks an 
asylum” at all times when he claims the use of 
the territories of the United States, 12 
Blatchf. 395. 

6. Anjinstitution for the protection and re- 
lief of unfortunates, as asylums for the poor, 
for the deaf and dumb, or for the insane. 


AT ARM’S LENGTH. Beyond the 
reach ef personal influence or contrel. Par- 
ties are said to deal “at arm’s length” when 
each stands upon the strict letter of his 
rights, aud conduets the business in a formal 
manner, without trusting to the ofher’s fuir- 
ness or integrity, and without bein sabject 
to the other’s control or overmastering in- 
fluence. 


AT BAR. Before the court. 
at bar,” etc. Dyer, 31. 

AT LARGE, (1) Not limited to any par- 
ticular place, district, person, matter, or 
question. (2) Free; unrestrained; not under 


‘To assign to 


“The case 


Hi 


K 


ii 


AT LAW 


corporal control; as a ferocious animal so 
free from restraint as to be linble to do mis- 
chief, (3) Fully; in detail; in an extended 
form. 


AT LAW. According tolaw; by, for, or 
in law; particularly in distinction from that 
which is done in or according to equity; or 
in titles such as sergeant at Jaw, barrister at 
law, attorney or counsellor at law. 


AT SEA. Out of the limits of any port 
or harbor on the sea-coast, 1 Story, 251. 


ATAMITA. In the civil law. 
preat-greal-grandfather’s sister. 

ATAWVIA. In the civil law. <A great- 
grandmother's grandmother, 


ATAVUNCULUS. The brother of a 
great-grandlather’s grandmother. 


A great- 


ATAVUS. The great-grandfather’s or 
great-grandmother’s granifather; a fourth 
grandfather. The «ascending line of lineal 
ancestry runs thus: Pater, Avus, Proavus, 
Abavus, Atavus, Uritavus. Theseventh gen- 
eration in the ascending scale will he 7'ritavi- 
pater, and the next above it Proavi-atavus. 


ATHA. In Saxon law. An oath; the 
power or privilege of exacting and adminis- 
tering an oath. Spelman. 


ATHEIST. One who does not believe in 
she existence of a God. 


ATTA, 
EV ATIA. 


Hatred or ill-will. See Dr Opro 


ATILIUM. The tackle or rigging ofa 
ship; the harness or tackle of a plow. Spel- 
mati, 


ATMATERTERA. <A great-crandfa- 
thers grandmother’s sister, (atavie soror ;) 
called by Bracton “atmatertera magna.” 
Bract. fol. 680. 


ATPATRUUS. The brother of a great- 
grandfather's grandfather. 


ATTACH. To take or apprehend by com- 
mandment of a writ or precept. 

It differs from arrest, becauselit takes not 
only the boy, but sometimes the goods, 
whereas an arrest is only against the person; 
besides, he whe attaches keeps the party at- 
tached in order to produce him in court on 
the day named, but he who arrests lodges the 
person arrested in the custody of a higher 
power, to be forthwith disjosed of. Fleta, 
lib. 5, ¢. 24. See ATTACHMENT. 


102 


ATTACHMENT 


ATTACHE. A person attached to the 
suite of an ambassador or to a foreign lega 
tion. 


ATTACHIAMENTA BONORUM. A 
distress formerly taken upon goods and chat- 
tels, by the legal ailackiaters or bailiffs, aa 
security to answer an action for personal es- 
tate or debt. 


ATTACHIAMENTA DE SPINIS ET 
BOSCIS. A privilege granted to the off- 
cers of a forest to take to their own use 
thorns, brush, and windfalls, within their 
precincts. Kenn. Par. Antig. 209. 


ATTACHMENT. .The act or process of 
taking, apprehending, or seizing persons or 
property, by virtue of a writ, summons, or 
other judicial order, and bringing the same 
into the custody of the law; used either for 
the purpose of bringing a person before tha 
court, ot acquiring jurisdiction over the 
property seized, to compel an appearance, to 
furnish security for debt ur costs, or to arrest 
a fund in the hands of a third person who 
may become liable to pay it over. 

Also the writ or other process for the ae- 
complishment of the purposes above enu- 
merated, this being the more common use of 
the word, 


Of persons. <A writ issued by a court of 
record, commanding the sheriff to bring be- 
fore it a person who has been guilty of con- 
tempt of court, either in neglect or abuse of 
its process or of subordinate powers. 8 Bl. 
Comm. 280; 4 Bl. Comm, 283. 

Of property. <A species of mesne pro- 
cess, by which a writ is issued at the institu: 
tion or during the progress of an action, com. 
manding the shorilf to seize the property, 
rights, credits, or effects of the defendant tc 
be held as security for the satisfaction of 
such judgment as the plaintiff may recover. 
It is principally used against absconding, con- 
cealed, or fraudulent debtors. 

To give jurisdiction. Where the de- 
fendant is a non-resident, or beyond the ter- 
ritorial jurisdiction of the court, his goods or 
land within the territory may be seized upon 
process of attachment; whereby he will be 
coinpelled to enter an appearance, or the 
court acquires jurisdiction go far as to dis- 
pose of the property attached. This is some- 
times called “foreign attachment.” 

Domestic and foreign. In some juris- 
dictions it is common to give the nume “do- 
mestic attachment” to one issuing against a 
resident debtor, (upon the special ground of 
fraud, intention to abscond, eic.,) and to 


ATTACHMENT OF PRIVILEGE 


Iignate an attachment against a non-resi- 
f, or his property, as “foreign.” But 
‘term “foreign attachment” more prop- 
ly belongs to the process otherwise famil- 
fly known as “garnishment.” It was a 
saliar and ancient remedy open to ereditors 
hin the jurisdiction of the city of Lon- 
a, by which they were enabled to satisfy 
drown debts by attaching or seizing the 
ney or goods of the debtor in the hands of 
hird person within the jurisdiction of the 
iy. This power and process survive in 
dern law, in all common-law jurisdictions, 
al are variously denominated “garnish- 
tient,” “trustee process,” or “factorizing.” 


ATTACHMENT OF PRIVILEGE. 
\English law. A process by whici aman, 
y virtue of his privilege, calls another to 
tigate in that court to which he himself be- 
fangs, and who has the privilege to answer 
ere, 

A writ issued to apprehend a person in a 
Privileged place. Termes de la Ley. 


ATTACHMENT OF THE FOREST. 
One of the three courts formerly held in 
forests. The highest court was called “ jus- 
tice in eyre’s seat;” the middle, the “swain- 
mote;” and the lowest, the “attachment.” 
Manwood, 90, 99. 


ATTAINDER. That extinction of civil 
Tights and capacities which takes place when- 
eyer 8 person who has committed treason or 
felony receives sentence of death for his 
ctime. 1 Steph. Comm. 408; 1 Bish. Crim. 
Law, § G41. 

It differs from conviction, in that itis after 
judgment, whereas conviction is upon the 
verdict of guilty, bub before judgment pre- 
nounced, and may be quashed upon some 
point of law reserved, or judgment may he 
arrested. The consequences of attainder are 
forfeiture of property and corruption of blood, 
4 Bl. Comm. 880. 

At the common law, attainder resulted in 
three ways, viz.: by confession, by verdict, 
and by process or outlowry. The first case 


was where the prisoner pleaded guilty at the | 


bar, or having fled to sanctuary, confessed 
his guilt and abjured the reali to save his 
life. he second was where the prisoner 
pleaded not guilty at the bar, and the jury 
brought ina verdict against him, 
when the person accused made his escape and 
was outlawed, 


ATTAINDER, BILL OF. See Bitu 
OF ATTALINDER. 


Che third, | 


103 


ATTENTAT 


ATTAINT. In old English practice, A 
writ which lay to inquire whether a jury of 
twelve men had given a false verdict, in or- 
der that the judgment might be reversed. 3 
Bl, Comm. 402; Iraet. fol. 2886-292. This 
inquiry was made by a grand assise or jury 
of tryenty-four persons, and, if they found 
the verdict a false one, the judgment was 
that the jurors should become infamous, 
should forfeit their goods and the profits of 
their lands, should themselves be imprisoned, 
and their wives and children thrust ont of 
doors, should have their houses razed, their 
trees extirpated, and their meadows plowed 
up, and that the plaintiff should be restored 
to all that he Jost by reason of the unjust ver- 
dict. 3 Bl, Comm. 404; Co. Litt. 2946. 

A person was said to be attaint when he 
was under attainder, (g. v.) Co. Litt. 3906. 


C 


D 


ATTAINT UNE CAUSE. In French E 
law. The gain of a suib. 


ATTEMPT. In criminal law. An effort 
or endeavor to accomplish a crime, amount- 
ing to more than mere preparation or plan- 
ning for it, and which, if not prevented, would 
have resulted in the full consummation of 
the act attempted, but which, ia faci, does 
not bring to pass the party's ultimate design » 

An intent to doa particular criminal thing 
combined with an act which falls short of 


| the thing intended. 1 Bish. Crim. Law, § 728. 


Thereis 2 marked distinction between “attempt” 
and “intent.” The former conveys the idea of 
physical effort te accomptish an act; the latter, the“ 
quality of mind with which an act was dons. To 
charge, in an indictment, an assault with an at- 
tempt to murder, is not equivalent to charging an 
assnult with iutent to murder. 14 Ala. 4/1. 


i 


ATTERIVDANT. One who owes a duty 
or service to another, or in some sort depends 
upon him. Termes dela Ley. One whio fol- 
lows and waits upon another. 


ATTENDANT TERMS. In English 
law. Terms, (usually mortgages,) for along , 
period of years, which are created or kept 
outstanding for the purpose of attending or 
waiting upon and protecting the inheritance. 

1 Steph. Comm. 351. 


A phrase used in conveyancing to denote estates 
which are kept alive, after the objects for which 
they were originally created have ceased, sc that 
they might be deemed merged or satistied, for the 
purpose of protecting or strengthening the title of 
theowner. Abboit. 


ATTENTAT, Lat. He attempts. In 
the civil and canon law. Anything wrong- 
fully innovated or attempted in a suit by an 
inferior judge, (or judge @ quo,) pending an 


ATTERMINARE 
appeal. 1 Addams, 22, note; Shelf. Mar. & 
Div. 562. 


ATTERMINARE. In old English law. 
To put off toa suceceding term; to prolong 
the time of payment of adebt. St. Westm. 
2, ¢.4; Cowell; Blount. 


ATTERMINING. In old English law. 
A putting off; the granting of a time or term, 
as Tor the payment of adebt. Cowell. 


ATTERMOIEMENT. In canon law. 
A making terms; a composition, as with cred- 
itors. 7 Low. Can, 272, 306. 


ATTEST. To witness the execution of a 
written insirument, at the request of him 
who makes it, and subscribe the same as a 
witness. This is also the technical word by 
which, in the practice in many of the states, 
a certifying officer gives assurance of the gen- 
uineness and correctness of a copy. 

An “attested” copy of a document is one 
which has been examined and compared with 
the original, with a certificate or memoran- 
dum of ifs correctness, signed by the persons 
who have examined it. 


ATTESTATION. The act of witnessing 
an instrument in writing, at the request of 
the party making the same, and subscribing 
itas a witness. 3 P. Wms. 254; 2 Ves. Sr. 
454; 17 Piek. 373. 

Heecution and attestation are clearly dis- 
tinct formalities; the former being the act of 
the party, the latter of the witnesses only. 


ATTESTATION CLAUSE. That 
clause Wherein the witnesses certify that the 
instrument has been executed before them, 
and the manner of tlie execution of the same. 


ATTESTING WITNESS. One who 
signs his name to an instrument, at the re- 
quest of the party or parties, for the purpose 
of proving and identifying it. 


ATTESTOR OF A CAUTIONER. In 
Scotch practice. A person who attests the 
sufliciency of a cautioner, and agrees to be- 
come swbsidiarie liable for the debt. ell. 


ATTILE. Inold English law. Rigging; 
tackle. Cowell. 


ATTORN. In feudallaw. To transfer 
orturn overtoanother. Wherea lord aliened 
his seigniory, he might, with the consent of 
the tenant, and in some cases without, at- 
torn or transfer the homage and service of 
the latter to the alienee or new lord. LBract. 
fels. 816, 82. 


104 


ATTORNEY AT LAW 


In modern law. Toconsent to thet 
fer of a rent or reversion. A tenant is si 
to attorn when he agrees to become the te: 
ant of the person to whom the reversion hag 
been granted. See AvrORNMENT. 


ATTORNARE. In feudal law. To at 
torn; to transfer or turn over; to appotnk an 


attorney or substitute. 


ATTC (NARE REM. To turn over 
money or goods, é. e., to assign or appropriate — 
them to some particular use or service. 


ATTOERNATO FACIENDO VEL RE- 
CIPIENDO. Inold English law. An ob- 
solete writ, which commanded a sheriff or 
steward of a county court or hundred court 
to receive and admit an aitorney to appear 
for the person whovuwed suit of vourt. Pitzh, 
Nat. Brev. 156. 


ATTORNE. L.Fr. Inold English law, 
Anattorney, Britt. ¢. 126. 


ATTORNEY, In the most general sense 
this term denotes an agent or substitute, or 
one who is uppeinted and authorized to act 
in the place or stead of another. 

It is “un ancient English word, and signi- 
fieth one that is set in the turne, stead, or . 
piace of another; and of these sume be pri- 
vate * * * and some be publike, as at- 
torneys at law.” Co. Litt. 516, 128; Lritt, 
2056. 

One who is appointed by another to do 
something in his absence, and who has au- 
thority to act in the place and turn of him 
by whom he is delegated. 

Attorneys, in the modern use, are of two 
sorts, attorneys at law und attorneys in fact, 
as to which see those titles. 


ATTORNEY AT LARGE, Inold prac- 


| tice. An attorney who practised in all the 


counsel, official agent employed in preparing, 
managing, and trying cases in the courts. 
An officer in a court of justice, who is em- 
ployed by a party in a cause to manage the 
same for him. 

In English law. An attorney at law 
was a public officer belonging to the superior 
courts of common Jaw at Westminster, who 
conducted legal proceedings on behalf of 
others, called his clients, by whom he was 
retained; he answered to the solicitor in the 
courts of chancery, and the proctor of the 
admiralty, ecclesiastical, probate, and divorce 
courts. An attorney was almost invariably 


courts. Cowell. 
ATTORNEY AT LAW. An advocate, 


r ATTORNEY AT LAW 


0 a solicitor. It is now provided by the 
eature act, 1873, § $7, that solicitors, at- 
torneys, or proctors of, or by law empowered 
to practise in, any court the jurisdiction of 
which is by that act transferred to the high 
‘eourt of justice or the court of appeal, shall 
be called “solicitors of the supreme court.” 
Wharton. 

The term is in use in America, and in most of 
the states inciudes “barrister, ” “counsellor, ” and 
dlicitar,” in the sense in which those terms are 
in England. In some states, as well asin the 
Wnited States supreme court, “attorney” and 
“eounsellor” are distinguishable, the former term 
eing applied to the younger members of the bar, 
ito those who carry on the practice and formal 
of the suit, while “counsellor” is the adviser, 
special counsel retained to try the cause. In 
me jurisdictions one must have been an attor- 
or a given time before be can be admitted to 
Prectise as acounsellor, Rap, & L. 


ATTORNEY GENERAL, In English 
law. The chief law olticer of the realm, be- 
created by letters patent, whose office is 
exhibil informations and prosecute for the 
own in matters ecrinjinal, and to file bills in 
e exchequer in any nyatter concerning the 
King’s revenue. 
In American law. The attorney gen- 
eral of the United States is the head of the 
partment of justice, appointed by the pres~ 
Went, and a member of the cabinet. He ap- 
pears in behal? of the government in all cases 
in the supreme court in which it is interest- 
@d,and gives his legal advice tothe president 
and heads of departments upon questions 
submitted to him. 
In euch state aiso there is an attorney gen- 
étal, or similar officer, who appears for the 
people, as in England the attorney general 
‘appears for the crown. 


ATTORNEY IN FACT. A private at- 
torney authorized by another to act in his 
place and stead, either for some particular 
purpose, as to do a particular act, or for the 
trinsaction of business in general, not of a 
character. This authority is conferred 
an instrument in writing, called a “letter 
of utiorney,” or More coummoniy a “power of 
Bitorney.” Bac. Abr. “Attorney;” Story, 
Ag. 5 BD 


ATTORNEY OF THE WARDS AND 
LIVERIES. InEnglishlaw. This was the 
third officer of the Duchy court. Bac. Abr. 
“Attorney.” 


ATTORNEYS CEHRTIFICATH, In 
English law. <A certificate that the attorney 
Maied has paid the annualtax orduty. This 
is required to be taken out every year by all 


105 


AUCTOR 
practising attorneys uuder a penalty of Afty 
pounda. 


ATTORNEYSHIP. 
agent or attorney. 


The oifics of an 


ATTORNMENT. In feudal and old 
Enclish law. A turning over or transfer by 
a lord of the services of his tenant to the 
grantee of his svigniory. j 

Attormment is the act of a person who 
holds @ leasehold interest in land, or estate 
for life or years, by which he agrees to be- 
come the tenant of a stranger who has ac- 
quired the fee in the land, or the remainder 
or reversion, or the right to the rent ar serv- 
ices by wiich the tenant holds. 


AU BESOIN, In ease of need. A 
French phrase sometimes incorporated in a 
bill of exchange, pointing out some person 
from whom payment may be sought in case 
the drawee fails or refuses to pay the bill. 
Story, Bills, § 65. _ 


AUBAINE. See Droit p’AUBAINE 


AUCTION. A public sale of land or 
gouds, at public outery, to the highest bidder. 

A sale by auetion is a sale by publie out- 
ery to the highest bidder on the spot. Civil 
Code Cal. § 1792; Civil Code Dak. § 1022. 

The gule by auction is that which takes 
place when thething is offered publicly to be 
sold to whoever will give the highest price. 
Civil Code La. art. 2601, 

Auction is very gencrally defined as a sale to the 
highest bidder, and this is the usual meaning, 
There may, however, be asule to the lowest bid- 
der, as where land is sold for non-payment of taxes 
to whomscever will take it for the shortest term; 
or where a contract is offered to the one who will 
perform it ut the lowest price. Aud these appear 
fairly included in the term “auction.” Abbott. 


AUCTIONARIZA. Catalogues of goods 
for public sale or auction. 


AUCTIONARIUS. One who bought 
and sold again at an increased price; an auc- 
tioneer, Spelman. 


AUCTIONEER. <A person authorized 
or licensed by luw to sell lunds or goods of 
other persons at public auction; one who 
sells at auction. 

Awuelioncers differ from brokers, infthat the lat- 
ter may both buy and sell, whereas auctionéers can 
only sell; also brokers may seil by private contract 
only, and auctioneers by public auction only, Auc- 
tioneers can only sell goods for ready money, but 
factors may sell upon credit. 


AUCTOR. In the Roman law. An 


| auctioneer. 


AUCTOR 


In the civil law. A grantor or vendor 
of any kind. 

In old French law. A plaintiif. 
ham. 


AUCTORITAS. 
Authority. 


In old European law. A diploma, or 
royal charter. A word frequently used by 
Gregory of Tours and later writers. Spel- 
man. 


Kel- 


In the civil law. 


Auctoritates philosophorum, medico- 
rum, et poetarum, sunt in causis alle- 
gandz et terendz. The opinions of phi- 
losophers, physicians, and poets are to be 
alleged and received in causes. Co. Lilt. 
264. 


Aucupia verborum sunt judice indig- 
na. Catching at words is unworthy of a 
judge. Hob, 343. 


Audi alteram partem. Hear the other 
side; hear both sides. No man should be 
condemned unheard. Broom, Max, IL13. 
See L. RB. 2.P. C. 106. 


AUDIENCE. In international law. <A 
hearing; interview with thesovereign, The 
king or other chief executive of a country 
grants an audience toa foreign minister who 
enmes to him duly accredited; and, after the 
recall of a minister, an “audience of leave” 
ordinarily is accorded to him. 


AUDIENCE COURT. In English law. 
A court belonging to the Archbishop of Can- 
terbury, having jurisdiction of maiters of 
form only, as the confirmation of bishops, 
anil the like. This court bas the same au- 
thority with the Court of Arches, but is of 
inferior dignity and antiquity. The Dean of 
the Arches is the official auditor of the Audi- 
ence court. The Archbishop of York has 
also his Audience court. 


AUDIENDO ET TERMINANDO. A 
writ or commission to certain persons to ap- 
pease and punish any insurrection or great 
riot. Fitz. Nat. Brev. 110. 


AUDIT. Asa verb; to make an official 
investigation and examination of accounts 
and vouchers. : 

As a noun; the process of auditing ac- 
counts; the bearing and investigation bad 
before an auditor. 

AUDITA QUERELA. The name of a 
writ constituting the initial process in an ac- 
tion brought by a judgment defendant to ob- 
tain relief againat the consequences of the 


106 


AULNAGE 


judgment, on account of some matte 
fense or discharge, arising since its rend 
and which could not be taken adyante 
otherwise. See il Amer. & Eng. Ene. 
1003; Bae. Abr. sub voce; 3 Bl. Comm, 4 


AUDITOR. A public officer whose f 
tion is to examine and puss upon the accor 
and vouchers of officers who have rece! 
and expended public money by lawful 
thority. 

In practice. An officer (or officers} 0: 
court, assigned to state the items of di 
and credit between the parties ina suit whe 
accounts are in question, and exhibit the 
ance. 1 Metc. (Mass.) 218. 

In English law. An officer or agent of 
the crown, or of a private individual, or core 
poration, who examines perivdically the ac 
counts of under officers, tenants, stewards, or 
bailiffs, and reports the state of their ac 
counts to his principal. 


AUDITOR OF THE RECEIPTS. An 
oflicer of the English exchequer. 4 Inst. 107, 


AUDITORS OF THE IMPREST, Of- 
ficers in the English exchequer, who former- 
ly had the charge of auditing the accounts of 
the customs, naval and military expenses, — 
elc., now performed by the commissioners for 
auditing public accounts. 


AUGMENTATION. The increase of 
the crown’s revenues from the suppression 
of religious houses and the appropriation of 
their lands and revenues, 

Also the name of a court (now abolished) 
erected 27 Hen. VITT., to determine suits and 
controversies relating to monasteries and ab 
bey-lanus. 


Augusta legibus soluta non est. The 
empress or queen is not privileged ur ex- 


empted from subjection to the laws, 1 B). 
Comm, 219; Dig. 1, 3, 31. 
AULA. In old English law. A hall, or 


court; the court of a baron, or manor: a 
court baron. Spelman. 


AULA ECCLESIAY A nave or body of 
a church where temporal courts were an- 
ciently held. 


AULA REGIS. The chief court of Eng- 
land in early Norman times, It was estab- 
lished by William the Conqueror in his own 
hall, it was composed of the great officers 
of state, resident in the palace, and followed 
the king’s household in all his expeditions. 


AULNAGE. Sea ALNAGE 


AULNAGER 


ULNAGER. See ALNAGER, 


UMEEN. In Indian law. Trustee; 
Nssioneér; a2 temporary collector or su- 
or, appointed to the charge of a country 
be removal of a zemindar, or for any 
particular purpose of local investigation 
agement, 


JMIL., InIndianlaw. Agent; officer; 
¥e collector of revenue; superintendent 
listrict or division of a country, either 
i¢ part of the government zemindar or 


UMILDAR. In Indian law. Agent; 
holder of an office; an intendant and col- 
ir of the revenue, uniting civil, military, 
financial powers under the Mohammedan 
rument. 


UMONE, SERVICE IN. Where 
gare given in alms to some church or 
pus house, upon condition that aservice 
wayers shall be offered at ceriain times 
the re;ose of the donor’ssoul. Britt. 164. 


WUNCEL WEIGHT. In English law. 
ancient mode of weighing, described by 
alas “akind of weight with scales hang- 
or hooks fasiened to each end of a staff, 
cha man, lifting up upon his forefinger 
and, discerneth the quality or difference 
een the weight and the thing weighed.” 


WNT. The sister of one’s father or 
her, and a relation in the third degree, 
ive to niece or nephew. 


URES. A Saxon punisliment by cutting 
the ears, inflicted on those who robbed 
Irches, or were guilty of any other theft. 


URUM REGINA, Queen’s gold. A 
ul revenue belonging to every queen con- 
‘during her marriage with the king. 


AUTER ACTION PENDANT. L. Fr. 
ading. Another action pending. A 
of pleainabatement, 1 Chib. Pl. 454. 


AUTER DROIT. In right of another, 
g., a trustee holds trust property in right 
hiscesiui gue trust. A prochetn amy sues 
ight of an infant. 2 Bl. Comm. 176. 


ZU0THENTIC. 


uble as evidence. 


4 


AUTER, Autre. L. Fr. Another; 


107 


| 


AUTHORITIES 


AUTHENTIC ACT. In the civil law. 
An act which has been execrted before a 
notary or other public officer authorized to 


| execute such functions, or which is testified 


by a public seal, or has bean rendered public 
by the authority of a competent magistrate, 
or which is certified as being a copy of a pub- 
lic register. Nov. 73, c. 2; Cod. 7, 52, 6, 4, 
21; Dig. 22, 4. 

The e@uthentic act, as relates to contracts, 
is that which has been executed before a no- 4, 
tary public or other officer authorized to exe- 
cute sueh functions, in presence of two wit- 
nesses, free, male, and aged at least fourteen 
years, or of thres witnesses, if the party be 
blind. If the party dees not know how to 
sign, the notary mnst canse him to atlix his 
mark to the instrument. All proe?s verbals 
of sales of suecession property, signed by the 
sheriff or other person making the same, by 
the purchaser and two witnesses, are authen- 


D 


E 


ticacts, Civil Code La. art. 2284. 
AUTHENTICATION. In the law of 
evidence. The act or mode of giving au- 


thority or legaj authenticity to a statute, rec. 
ord, or other written instrument, or a certi- 
fied copy thereof, so as to render it legally 
admissible in evidence. 

An attestation made by a proper officer by 
which he certifies that a record is indue form 
of law, and that the person who certifies it is 
the ollicer appointed so to do. 


AUTHENTICS. In the civil law. A 
Latin translation of the Novels of Justinian 
by an anonymous author; so called because 
the Novels were trauslated eztire, in order to 
distinguish it from the epitome made by 
Julian. 

There is another collection so called, com- 
piled by Irnier, of incorrect extracts from Lhe 
Novels and inserted by him in the Code, in 
the places to whieh they reter. 


‘AUTHENTICUM. Inthecivillaw. An 
original instrument or writing; the original 
oi a will or otheriustrument, as distinguished 
from acopy. Dig. 22, 4, 2; Id. 29, 3, 12. 


AUTHOR. One who produces, by his 
own intellectual labor applied to the materials 
of his composition, an arrangement or com. 
pilation new in itself. 2 Blatehf. 39. 


AUTHORITIES. Citations to statutes, 


G 


Genuine; true; having | precedents, judicial decisions, and text-books 

character and authority of an original; of the law, made on the argument of ques 
ly vesied with all necessary formalities tions of Jaw or the trial of causes before a 
ally attested; competent, credible, and court, in support of the legal positions con- 


{ tended fur. 


AUTHORITY 


AUTHORITY. Incontracts. Thelaw- 
ful delegation of power by one person to an- 
other. 

In the English law relating to public ad- 
ministration, an authority is a body having 
jurisdiction in certain matters of a public 
nature. 


In governmental law. Legal power; a 
right to command or to act; the right and 
power of publie officers to require obedience 
to their ucders jawfully issued in the seupe 
of their public duties. 


Authority to execute a deed must be 
given by deed. Com. Dig. “Attorney,” C, 5; 
4 Term, 318; 7 Terin, 207; 1 Holt, 141; 9 
Wend. 68, 75; 5 Mass. 11; 5 Bin. 618. 


AUTO ACORDADO. In Spanish colo- 
nial law. An order emanating from some 
superior tribunal, promulgated in the name 
and by the authority of the suvereign, Schm. 
Civil Law, 93. i 


AUTOCRACY. The name of an unlim- 
ited monarchical government. A government 
at the will of one man, (called an “autoerat,”) 
unchecked by constitutional restrictions or 
limitations. 


AUTOGRAPH. The handwriting of any 
one. ; 


AUTONOMY. The pulitical independ- 
ence of a nation; the right (and condition) 
of self-government. 


AUTOPSY. The dissection of a dead 
body for the purpose of inquiring into the 
causcoofdeath. Pub. St, Mass. 1882, p. 1288. 


AUTRE. L. Fr. Another. 


AUTRE VIB. L. Fr. Another’s life. 
A person holding an estate for or during the 
life of another is called a tenant “pur autre 
vie,” or “pur terme d’autre vie.” Litt. § 56; 
2 Bl. Comm. 120. 


AUTREFOIS, At another time; former- 
ly; before; heretofore. 


AUTREFOIS ACQUIT. In criminal 
law, Formerly acquitted. The name of a 
plea in bar to a criminal action, stating that 
the defendant has been once already indicted 
and tried for the same alleged offense and has 
been acquitted. 


AUTREFOIS ATTAINT. In criminal 
jaw. Formerly attainted. <A plea that the 
defendant has already been attainted for one 
felony, and therefore cannot be criminally 
prosecuted for another. 4 bl. Comm. 336. 


108 


convening a party, at the suit and request of 


AVAL 


AUTREFOIS CONVICT. Form 
convicted. In criminal law. A plea by 
criminal in bar to an indictment that he 
been formerly convieted of the same ide 
tical crime. 4 BL Comm. 336; 4 Steph. 
Comm. 404. 


AUXILIUM. In feudal and old English 
law. Aid; a kind of tribute paid by the vas 
sal to his lord, being one of the incidents of 
the tenure by knight's service, Spelman. 


AUXILIUM AD FILIUM MILITEM 
FACIENDUM ET FILIAM MARITAN- 
DAM, An ancient writ which was ai- 
dressed to the sheriff to levy compulsorily an 
aid towards the kniglting of a son and the 
marrying of a daughter of the tenants tz ea- 
pite of the crown. | 


AUXILIUM CURIA. In old English 
law. A precept or order of court citing and 


another, to warrant something. 


AUXILIUM REGIS. In English law, 
The king’s aid or money levied for the royal 
use and the public service, as taxes granted 
by parliament. 


AUXILIUM VICE COMITI. An an- 
cient duty paid to shevifia. Cowell. 


AVAIL OF MARRIAGE. In fendal 
law. The right of marriage, which the lord 
or guardian in chivalry had of disposing of 
his infant ward in matrimeny. <A guardian 
in socage had also the same. right, but not 
attended with the same advantage. 2 Bh 
Comm. 88. 

In Scoteh law. A certain sum due by 
the heir of a deceased ward vassal, when the 
heir became of marriageableage. Ersk. Inst, 
2,8, 18. 


AVAILABLE: MEANS. This phrase, 
among mereantile men, is a term well un- 
derstood to be anything which can readily be 
converted into money; but it is not necessa- 
rily or primarily money itself. 13 N. Y. 
219; 82 N. Y. 224. 


AVAILS. Profits, or proceeds. This 
word seems to have been construed only in 
reference to wills, and in them it means the 
corpus or proceeds of the estate after the pay- 
ment of the debts. 1 Amer. & Eng. Ene. 
Law, 1089. See3 N. Y. 276, 34.N. Y, 201. 


AVAL. In French law. The guaranty 
of a bill of exchange; so called because usu- 
ally placed at the foot or bottom (eval) of 
the bill. Story, Bills, § 394, 454. 

The act of subscribing one’s signature at 


AVANTURE 


the bottom of a promissory note or of a bill 
of exchange; properly an act of suretyship, 
by the party signing, in favor of the party 
to whom the note or bill is given. 1 Low. 
Can. 221. 
AVANTURE. 
hance, 
AVARIA, AVARIE. Average; the loss 


and damage suffered inthe course of a nay- 
igation. Poth. Mar. Louage, 105. 


AVENAGEH. A certain quantity of oats 
paid bya tenant to his landlord as rent, or in 
lieu of some other duties. 


AVENTURE, or ADVENTURE. A 
mischince causing the death of a man, as 
where a person is suddenly drowned or killed 
by any accident, without felony. Co. Litt. 
aol. 

AVER. In pleading. To declare or as- 


Chance; hazard; mis- 


seri; to set out distinctly and formally; to | 


allege. 

In old pleading. To ayouch or verify. 
Litt. §691; Co. Litt. 3622, To make or prove 
true; to make good or justify a plea. 


AVER. In old English and French, A 
working beast; a horse or bullock. 


AVER CORN. A rent reserved to re- 
ligious houses, to be paid by their tenants in 
corn. 


AVER ET TENER. In old conveyanc- 
ing. To have and to hold, 


AVER LAND. In feudal law. Land 
plowed by the tenant for the proper use of 
the lord of the soil. 


AVER PENNY. Money paid towards 
the king’s averages or carriages, and so to be 
freed thereof. 


AVER SILVER. <A custom or rent for- 
merly so called. 


AVERAGE. <A medium, a mean propor- 
tion, ; 

In old English law. <A service by horse 
or carriage, anciently due by a tenant to his 
lord. Cowell. A labor or service performed 
with working cattle, horses, or oxen, or with 
wagons and carriages. Spelman. 

Stubble, or remainder of straw and grass 
left in corn-fiekis after harvest. In Kent it 
is called “yratten,” and in other parts“ vough- 
ings.” 

In maritime law. Loss or damage acci- 
dentally happening to a vessel or to its cargo 
during a voyage. 


109 


AVERIA CARRUCA 


Also a small duty paid to masters of ships, 
when goods are sent in another man’s ship, 
for their care of the goods, over and above 
the freight. 

In marine insurance. Where loss or 
damage occurs to a vessel or its cargo at 
sea, average is the adjustment and appor- 
tionment of such loss between the owner, the 
freight, and the eargo, in proportion to their 
respective interests and losses, in order that 
one may not suffer the whole loss, but each 
contribute ratably. It is of the following 
kinds; 

General average (also called “gross”) con- 
sists of expense purposely incurred, sacrifice 
made, or damage sustained for the common 
safety of the vessel, freight, and cargo, or the 
two of them, at risk, and is to be contribnted 
for by the several interests in the proportion 
of their respective values exposed to the com- 
mon danger, and ultimately surviving, in- 
cluding the amount of expense, sacrifices, or 
damageso incurred in the contributory value. 
2 Phil. Ins. § 1269 et seq. 

Particular average is a loss happening to 
the ship, freight, or cargo which is not to be 
shared by contribution among all those inter- 
ested, but must be borne by the owner of the 
subject to which if occurs. It is thus ealled 
in contradistinetion to general average. 

Petty average is a term sometimes applied 
to small charges which were formerly assessed 
upon the cargo, viz., pilotage, towage, light- 
money, beavonage, anchorage, bridge-toll, 
quarantine, pier-money. 


AVERAGE CHARGES. “Average 
charges for toll and transportation ” are under- 
stood to mean, and do mean, charges made 
at a mean rate, obtained by dividing the en- 
tire receipts for toll and transportation by 
the whole quantity of tonnage carried, re- 
duced to a common standard of tons inoved 
one mile, 74 Pa. St. 190. 


AVERAGE LOSS. In maritime law. 
A partial loss of goods or vessels insured, for 
which the insurers are bound to compensate 
the insured in the proportion which the loss 
bears tothe whole insurance. 2Steph. Comm, 
178. 

AVERAGE PRICES. Such as are com- 
puted on all the prices of any articles sold 
within a certain period or district. 

AVERIA. In old English law. This 
term was applied to working cattle, such as 
horses, oxen, etc, 


AVERIA CARRUCA. Beasts of the MM 


plow. 


AVERIS 


AVERIIS CAPTISIN WITHERNAM, 
A writ granted to one whose cattle were un- 
lawfully distrained by another and driven out 


of the county in which they were taken, so.’ 


that they could not be replevied by the sheriff. 
Reg. Orig. 82. 


AVERMENT, In pleading. A positive | 


stutement of facts, in opposition toargument 
or inference. 1 Chit. Pl. 320. 

In ofd pleading. An offer to provea plea, 
or pleading. The concluding part of a plea, 
replication, or other pleading, containing new 
affirmative matter, by which the party olfers 
or declares himself “ready to verify.” 


AVEBRARE. In feudal law. <A duty 


required from some customary tenants, to | 


carry goods ina wagon or upon loaded horses. 


AVERSIO. Inthe civil law. An avert- 
ing or turning away. A term applied to a 
species of sale in gross or bulk, Letting a 
house altogether, instead of in chambers. 4 
Kent, Comm. 517. 


AVERSIO PERICULI. A turning away 
of peril. Used of a contract of insurance. 3 
Kent, Comm. 263. 


AVERUM. Goods, property, substance; 
a beast of burden. Spelman. 


AVET. A term used in the Scotch law, 
signifying to abet or assist. 


AVIA. Inthe civillaw. A grandmother. 
Inst. 3, 6, 8. 


AVIATICUS. Inthecivillaw. A grand- 
son, 


AVIZANDUM. InScotchlaw. To make 
avizandum with a process is to take it from 
the public court to the private consideration 
of the judge. Bell. 


AVOCAT. Fr. Advocate; anadvocate. 


AVOID. To annul; cancel; make void; 
to destroy the efficacy of anything. 


AVOIDANCE. <A making void, or ofno 
effect; annulling, cancelling; escaping or 
evading. 

In English ecclesiastical law. The 
term describes the condition of a benefice 
when it has no incumbent. 


In parliamentary language, avoidance of a | 


decision signifies evading or superseding a 
question, or escaping the coming to a de- 
cision upon a pending question. Holthouse. 


in pleading. The allegation or state | 


ment of new matter, in opposition to a for- 
mer pleading, which, admitting the facts al- 


110 


AVULSION 


leged in such former pleading, shows cause 
why they should not have their ordinary le- 
gal effect. 


AVOIRDUPOIS. The nameof a system 
of weights (sixteen ounces to the pound) used 
in weighing articles other than medicines, 
metals, and precious stones. 


AVOUCHER. The calling upon a war- 
rantor of lands to fulfil his undertaking. 


AVOUE. In French law. A barrister, 
advocate, attorney. An offiecr charged with 
representing and defending parties before the 
tribunal to which he is attached. Duverger. 


AVOW. In pleading. To acknowledge 
and justify an act done. 

To make an avowry. For example, when 
replevin is brought for a thing distrained, 
and the party taking claims that he had a 
tight to make the distress, he is said to avow. 


AVOWANT. One who makes anavowry. 


AVOWEE. In ecclesiastical law. An 
advocate of a church benefice. 


AVOWRY. A pleading in the action of 
replevin, by which the defendant avomws, that 


| is, acknowledges, the taking of the distress 


or property complained of, where he took it 
in his own right, and sets forth the reason 
of it; as for rent in arrear, damage done, ete. 
3 Bl. Comm. 149; 1 Tidd, Pr. 645. 


Avowry is the setting forth, as in a declaration, 
the nature and merits of the defendant's case, 


, showing that the distress taken by him waa lawful, 


which must be done with such sufficient authority 
as will entitle bim toa retornoe habendo. 6 Hill, 
284. 

An avowry must be distinguished from a frstift- 
cation. The former species of plea admits the 
plaintiff's ownership of the property, but alleges 
a right in the defendant sufficient to warrant him 
tu taking the property and which stili subsisis. 
A justification, on the other band, denies that the 
plaintiff had the right of property or possession in 
the subject-matter, alleging it to have been in the 
defendant or a third person, or avers a right suffi- 
cient to warrant the defendant in taking it, al 
though such right has not continued in force to the 
time of making answer. 


AVOWTERER. In English law. An 


adulterer with whom a married woman con- 
tinues in adultery. Termes de la Ley. 


AVOWTRY. Inold English law. 
tery. Termes de la Ley. 


AVULSION. The removal of a consid- 
erable quantity of soil from the land of one 
man, and iis deposit upon or annexation to 
the land of another, suddenly and by the per- 
ceptible action of water. 2 Washb. Real 
Prop, 452. 


Adul. 


AVULSION 


The property of the part thus separated 
continues in the original proprietor, in which 


lll 


AZURE 


AWAY-GOING CROP. A crop sown 
before the expiration of a tenancy, which can- 


respect avulsion diliers from alluvion, by | not ripen until after its expiration, to which, 


which an addition is insensibly made to a | however, the tenant is entitled. 


property by the gradual washing down of the 
Tiver, and which addition becomes the prop- 
erty of the owner of the lands to which the 
addition is made. Wharton. 


AVUNCULUS. Inthecivillaw. A moth- 
er’s brother. 2 Bl. Comm.230. Avuneculus 
magnus, a great-uncle. <Avenculus major, 
a great-grandmother’s brother. Aouneulus 
mactmus, a great-great-grandmotier’s broth- 
er. See Dig, 38, 10, 10; Inst. 3, 6, 2. 


AVUS. Inthecivillaw. <A grandfather. 
Inst. 3, 6, 1. 


AWAIT, A term used in old statutes, 
signifying a lying in wait, or waylaying. 


AWARD, ec To grant, concede, ad- 
judge to. Thus, a jury awards damages; 
the court @wards an injunction. 


AWARD, nu. The decision or determina- 
tion rendered by arbitrators or commissioners, 
or other private or extrajudicial deciders, up- 
on acontroversy submitted to them; also the 
writing or document embodying such decis- 
‘om. 


Broom, 
Max. 412. 


AWM. Inold English statutes. A meas- 
ure of wine, or vessel containing forty gal- 
lons. 


AXIOM. Inlogie. A self-evident truth; 
an indisputable truth. 


AYANT CAUSE. In French law. This 
term signifies one to whom a right has been 
assigned, either by will, gift, sale, exchange, 
or the like; an assignee. An ayant cause 
differs from an heir who acquires the right 


by inheritance. 8 Toullier, n. 245, The 
term is used in Louisiana. 

AYLE. See ATEL. 

AYRE. In old Seotch Jaw. Eyre; a cir- 


cuit, eyre, or iter, 


AYUNTAMIENTO. In Spanish law. 
A congress of persons; the municipal counci} 
of a city or town. 1 White, Coll. 416; 12 
Pet. 442, notes. 


AZURE. A term used in heraldry, sig- 
nifying blue. 


if 


B 2 


B. Thesecond letter of the Enclish alpha- 
bet; is used to denote the second of a series 
of pages, notes, ete,; the subsequent datters, 
the third and following numbers. 


(Biegate 
Christ, ” 
eases,” 


An abbreviation for 
“bail court,” aud 


“before 
“bankruptey 


B. E. An abbreviation for “Baron of the 
Court of Exchequer.” 


B. F. An abbreviation for benwm fac- 
tum, % good or proper act, deed, or decree; 
signifies “approved.” 


B. R. Anabbreviation for Bancus Regis, 
(King’s Bench,) or Bancus Regine, (Queen’s 
Bench.) It is frequently found in the old 
books as a designation of that court. In 
more recent usage, the initial letters of the 


English names are ordinarily employed, @. ¢., 


K. B. or Q, B. 


B, S. 
bench. 


«BABY ACT.” A plea ot infancy, inter- 
posed for the purpose of defeating an action 
upon a contract made while the person was a 
minor, is vulgarly called “pleading the baby 
act.” By extension, the term is applied to a 
plea of the statute of limitations. 


BACHELERIA. In old records. Com- 
monalty or yeomanry, in contradistinction to 
laronuge, 


Bancus Superior, that is, upper 


BACIIELOR. The holder of the first or 
lowest degree conferred by a college or uni- 
versity, ¢. g., a bavielor of arts, bachelor of 
law, ete. 

A kind of inferior knigit; an esquire. 

A man who has never been married. 


BACKWATER. Water in a stream 
which, in consequence of some dam or ob- 
struction below, is detained or checked in its 
course, or flows back. 

Water caused to flow backward from a 
steam-vessel by reason of the action of its 
wheels or screw. 


BACKBEAR. In forest law. Carrying 
on the back. One of the cases in which an 
offender against vert and venison might be 
arrested, as being taken with the mainour, or 
manner, Or found carrying a deer off on his 
buck Manwood; Cowell, 


BAD 


BACKBEREND. Sax. Bearlng upon 
the back or about the person. Applied to a 
thief taken with the stolen property in his 
immediate possession. Bract. 1, 3, tr. 2, 

| ce. 32. Used with handhabend, having in the 
hand. : 


BACKBOND, In Scotch law. <A deed 
attaching a qualification or condition to thie 
terms of a conveyance or other instrument 
This deed is used when particular cireum- 
stances render it necessary to express ina 
separate form the limitations or qualifications 
ofaright. Bell. The instrument is equiv- 

| ulent to a declaration of trust in English con- 
veyancing. 


BACKING. Indorsement; indorsement 
by a magistrate. 


BACKING A WARRANT, The war- 
rant of a justice of the peace cannot be en- 
fureed or executed outside of his territorial 
jurisdiction unless a magistrate of the juris- 
diction where it is to be executed tndorses or 
writes on the back of such warrant an au- 
thority for that purpose, which is thence 
termed “backing the warrant.” 


BACKSIDE. in English law. <A term 
formerly used in conveyances and also in 
| pleading; it imports a yard at the back part 
of or behind a house, and belonging thereto. 


BACKWARDATION. In the language 
of the stock exchange, this term signifies a 
consideration paid for delay in the delivery 
of stock contracted for, when the price is 
lower for titne than for cash. Dos Passos, 
Stock-Brok. 270. 


BACKWARDS. In a policy of marine 
insurance, the phrase “forwards and back- 
wards at sea” means from port to port in the 
course of the voyage, and not merely from 
one terminus to the other and back, 1 Taunt. 
475. 


BACULUS. A rod, staff, or wand, usea 
in old English practice in making livery of 
seisin where no building stvod on the land, 
{Bract. 40;) a stick or wand, by the erection 
of which on the land involved in a real ae- 
tion the defendant was summoned to put in 
his appearance; this was called “baculus nun- 
tiatorius.” 3 Bl. Comm. 279. 


BAD, (insubstance.} The technical word 
for unsoundness in pleading. 


BADGE 


BADGH. A mark or cognizance worn to 
show the relation of the wearer to any person 
orthing; the token of anything; a distinctive 
mark of office or service. 


BADGE OF FRAUD. A term used 
relatively to the law of fraudulent convey- 
ances, made to hinder and defraud creditors. 
It is defined aa a fact tending to throw suspi- 
cion upon a transaction, and calling for an 
explanation. Lump, Fraud. Conv. 31. 


BADGER. In old English law. One 
who made a practice of buying corn or yict- 
vals in one place, and carrying them to an- 
other to sell and make profit by them. 


BAG. A certain and customary quantity 
of goods and merchandise in a sack. Whar- 
ton. 


BAGA. InEnglishlaw. <A bag or purse. | 


Thus there is the petty-bay-office in the eom- 
mon-law jurisdiction of the court of chancery, 
because all original writs relating to the busi- 
ness of the crown were formerly kept ina 
little sack or bag, tn parva bagdé. 1 Madd. 
Ch. 4. 


BAGGAGE. Inthelawof carriers. This 
term comprises such articles of personal con- 
venience or necessity as are usually carried 
by passengers for their personal use, and not 
merchandise or other valuables, although 
carried in the trunks of passengers, which 
are not designed for any such use, but for 
other purposes, such as a sale and the like. 
Story, Bailm. § 499. See, also, Hutch. Carr. 
§ 679; L. BR. 6 Q. B. 612; 6 Hill, 586; 9 
Humph. 621; 23 Fed. Rep. 765. See cases 
collected in 1 Amer, & Eng. Ene. Law, 1042. 

The term includes whatever the passenger 
takes with him for his personal use or con- 
venience according to the habits or wants of 
the particular class to which he belongs, either 
with reference to the immediate necessities 
or ultimate purpose of the journey. L. R. 
6 Q. B. 612. 


BAHADUM. A chest orcoffer. Fileta. 


BAIL, ». To procure the release of a 
person from legal custody, by undertaking 
that he shall appear at the time and place 
designated and submit himself to the jurisdic- 
tion and judgment of the court. 

To set at liberty a-person arrested or im- 
prisoned, on security being taken for his ap- 
pearance on a day and a place certain, which 
securily is called “bail,” because the party 
arrested or imprisoned is delivered into the 
hands of those who bind themselves for his 
forthcoming, (that is, become bail for his due 

AM. DICT.LAW—8 


113 


BAIL-BOND 


appearance when required,) in order that ha 
may be safely protected from prison. Whar- 
ton. 


BAIL, n. In practice. Thesureties who 
procure the release of a person under ar- 
resi, by becoming responsible for his appear- 
ance at the time and place designated, ‘Those 
persons who become sureties for the appear- 
ance of the defendant in court, 

Upon those contracts of indemnity which are 
taken in legal proceedings as security for the per- 
formance of an obligation imposed or declared by 
the tribunals, and known as undertakings or re- 
cognizances, the sureties are called “baiL” Civil 
Code Cal. § 2780. 

The taking of bail congista in the acceptance by 
& competent court, magistrate, or officer, of sufti- 
cient bail for the appearance of the defendant ac- 
cording to the legal effect of his undertaking, or 
for the payment to the state of a certain specified 
sum if he does not appear. Code Ala, 1886, § 4407. 


Bail is of various kinds, such as: 
Civil bail. That taken in eivil actions. 


Special bail, beiug persons who undertake 
that if the defendant is condemned in the 
action he shall pay the debt or surrender 


himself for imprisonment. 


Bail in error. That given by a defend- 
ant who intends to bring erroron the judg- 
ment and desires a stay of execution in the 
mean time. 

See, further, the following titles. 

In Canadian law. A lease. Bail em- 
phytiotique. A lease for years, witha right 
to prolong indefinitely. 5 Low. Can. 881. Itis 
equivalent toan alienation. 6 Low. Can, 58. 


BAILA CHEPTEL. In Frenchlaw. A 
contract by which one of the parties gives to 
the other cattle to keep, feed, and care for, 
the borrower receiving half the profit of in- 
crease, and bearing half theloss. Duverger. 


BAIL A FERME. In French law. A 


| eontract of letting lands. 


PAIL A LOYER. In French law. A 
contract of letting houses. 


BAIL A RENTE. In French law. A 
contract partaking of the nature of the con- 
tract of sale, and that of the contract of lease; 
it is translative of property, and the rent is 
essentially redeemable. 4 La. 286; Poth. 
Bail & Rente, 1, 3. 


BAIL ABSOLUTE. Sureties whose lia- 
bility is conditioned upon the failure of the 
principal to duly account for money coming 
to his hands as administrator, guardian, ete. 


BAIL-BOND. Inpractice. A bond ex- 
ecuted by a defendant who has been arrested, 


A 


BAIL, COMMON 


Logether with olher persons a8 sureties, nam- 
ing the sheriff, constable, or marshal as ob- 
ligee, in a penal sum proportioned to the dam- 
ages claimed or penalty denounced, condi- 
tioned that the defendant shall duly appear 
to answer to the legal process in the officer’s 
hands, or shall cause special bail to be put in, 
as the case may be, 


BAIL, COMMON. Inpractice. A ficti- 
tious proceeding, intended only to express 
the appearance of a defendant, in cases where 
special bail is not required. It is putin in 
the same form as special bail, but the suve- 
ties are merely nominal or imaginary persons, 
as John Doe and Richard Roe. 3 Bl. Comm. 


297. 


BAIL COURT. In English law and 
"practice. An auxiliary court of the court of 


queen’s bench at Westminster, wherein points | 


connected more particularly with pleading 


‘and practice are argued and determined. | 


Holihouse. 


BAIL PIECE. In practice. A formal 
entry or memorandum of the recognizance or 
undertaking of special bail in civil actions, 
which, after being signed and acknowledged 
by the bail before the proper officer, is filed 
in the court in which the action is pending. 
3 Bi. Comm, 291; 1 Tidd, Pr. 250. 


BAIL TO THE ACTION, BAIL 
ABOVE, OR SPECTIAT, BAIL. In prac- 
tice. Persons who undertake jointly and 
severally in behalf of a defendant arrested on 
inesne process in a civil action that, if he be 
condemned in the action, he shall pay the 
costs and condemnation, (that is, the amount 
which may be recovered against liim,) or ren- 
der himself a prisoner, or that they will pay 
it for him. 3 Bl. Comm. 291; 1 Tidd, Pr. 
245, 5 


BAIL TO THE SUERIFF, OR BAIL 
BELOW. In practice. Persons who un- 


dertake that a defendant arrested upon mesne | 
process in a civil action shall duly appear to | 


answer the plaintiff; such undertaking being 
in the form of a bond given to the sheriff, 
termed a “bail-bond,” (g. 2.) 3 Bl. Comm. 
290; 1 Tidd, Pr. 221. 


BAILABLE. Capable of being bailed; 
admitting of bail; authorizing or requiring 
bail. <A bailable aeéion is one in which tie 
defendant cannot be released from arrest ex- 
eept on furnishing bail. Bailable process is 
such as requires the officer to take bail, after 
arresting the defendant. A bailable offense 


114 


BAILIFFS OF MANORS. 


is one for which the prisoner may be admitted 
to bail. 


BAILEH, In the law of contracts. One 
to whom goodsare bailed; the party to whom 
personal property is delivered under ‘@ con- 
tract of bailment. 


BAILIE. In the Scotch law. A Dailie is 
(1) a magistrate having inferior criminal ju- 
risdiction, similar to that of an alderman, 
(q. v.,) (2) an officer appointed to confer in- 
feoffment, (q. v.;) a bailiff, (q. v.;) a server 
of writs. Bell. 


BAILIFF. In a general sense, a person 
to whom some authority, care, guardianship, 
or jurisdiction is delivered, committed, or in- 
trusted; one who is deputed or appointed to 
take charge of another’s affairs; an overseer 


| or superintendent; a keeper, protector, or 


guardian; a steward. Spelman. 

A sheriff's officer or deputy. 1 Bl. Comm. 
B44. 

A magistrate, who formerly administered 
justice in the parliaments or courts of France, 
answering to the English sheriffs as men- 
tioned by Bracton. 

In the action of account render. A 
person who has by delivery the custody and 
administration of lands or goods for the ben- 
elit of the owner or bailor, and is liable to 
render an account thereof. Co. Litt. 271; 
Story, Eq. Jur. § 446. 

A bailiff is defined to be “a servant that 
has the administration and eharge of lands, 
goods, and chattels, to make the best benefit 
for the owner, against whom an action of 
account lies, for the profits which he has 
raised or made, or might by his industry or 
care have raised or made.” 25 Conn. 149, 


BAILIFF-BERRANT. A builiff’s dep- 
uty. 


BAILIFFYS OF FRANCHISES. In 
English law. Officers who perform the da- 
ties of sheriffs within liberties or privileged 
jurisilictions, in which formerly the king's 
writ could not be executed by the sheriff. 
Spelman, 


BAILIFFS OF HUNDREDS. In En- 
glish, law. Officers appointed over hun- 
dreds, by the sheriffs, to collect fines therein, 
and summon juries; toattend the judges and 
justices at the assises and quarter sessions; 
and also to execute writs and process in the 
several hundreds. 1 Bl. Comm. 345; 3Steph. 
Comm. 29; Bract. fol. 116. 


BAILIFFS OF MANORS. In English 
law. Stewards or agents appointed by the 


BAILIVIA 


lord (generally by an authority under seal) 
to superintend the manor, collect fines, and 
quit rents, inspect the buildings, order re- 
piirs, cut down trees, impound cattle tres- 
passing, take an account of wastes, spoils, 
and misdemeanors in the woods and de- 
mesne lands, and do other acts for the lord’s 
interest. Cowell. 


BAILIVIA. In old law. A bailiffs ju- 
risdiction, a bailiwick; the same as badliwm. 
Spelman. See LBariiwick, 


In old English law. A liberty, or ex- 
clusive jurisdiction, which was exempted 
from the skeriff of the county, and over which 
the lord of the liberty appointed a bailiff 
with such powers within his precinct as an 
under-sheriff exercised under the sheriff of 
the county. Whishaw. 


BAILIWICK. The territorial jurisdic- 
tion of asheriff or bailiff. 1 11. Comm. 344. 


BAILLEUR DE FONDS. In Canadian 
law. The unpaid vendor of real estate. 


BAILLI. In old French law. One to 
whom judicial authority was assigned or 
fielivered by a superior. 


BAILMENT. A delivery of goods or 
personal property, by one person to another, 
in trust for the execution of a special object 
upon or in relation to such goods, beneficial 
either to the bailor or bailee or both, and 
upon a contract, express or implied, to per- 
form the trust and carry out such object, and 
thereupon either to redeliver the goods to 
the bailor or otherwise dispose ef the same in 
conformity with the purpose of the trust. 
See Cade Ga, 1852, § 2058. 


A delivery of goods in trust upon a contract, ex- 
pressed or implied, that the trust shall be faith- 
fully executed on the part of the bailee. 2 Bl. 
Comm, 455. 

Bailment, from the Freuch bailler, to deliver, is 
adelivery of goods for some purpose, upon a con- 
tract, express or implied, that, after the purpose 
has been fulfilled, they shall be redelivered to the 
bailor, or otherwise dealt with, according to his 
directions, or (as the case may be) kept tili he re- 
tlaims them. 2% Steph. Comm. £0, 

A delivery of goods in trust upon a contract, ex- 
pressed or implied, that the trust shall be duly 
exccuted, and the gocds restored by the bailee as 
soon as the purposes of the bailment shall be an- 
swered. 2 Kent, Comm. 559. 

Bailmeat is a delivery of a thing in trust for 
f£0Me special object cr purpose, and upon a con- 
tract, express or implied, to conform to the object 
or purpose of the trust. Story, Bailm. 3. 

A delivery of goods in trust on a contract, either 
expressed or implied, that the trust shall be duly 
executed, and the goods redelivered as soon as the 
time or use for which they were bailed shall have 
elapsed or be performed. Jones, Bailm. 117. 


115 


BAITING ANIMALS 


Bailment is a word of French origin, significant 
of the curtailed transfer, the delivery or mera 
handing over, which is appropriate to the transac- 
tion. Schouler, Pers. Prop. 695. 

The test of a bailment is that the identical thing 
is to be returned; if another thing of equal value 
is to be returned, the transaction is a salo. 6 
Thomp. & C. 29; 3 Hun, 530. 

Sir William Jones has divided bailments 
into five sorts, namely: Depositum, or de- 
posit; mandatum, or commission without 
recompense; commedatum, or loan for use 
without pay; pignort acceptum, or pawn; 
loeaium, or hiring, which is always with re- 
ward. This last is subdivided into locatio 
vei, or hiring, by which the hirer gains a 
temporary use of the thing; locatio operis 
Faciendi, when something is to be done to 
the thing delivered; docatio operis mercium 
vehendarum, Wien the thing is mérely to be 
carried from one place to another. Jones, 
Bailin. 36. 

Lord Holt divided bailments thus: 

(1) Depositum, or a naked bailment of goods, 
to be kept for the use of the bailor. 

(2) Commodatwm. Where goods or chattels 
that are useful ure lent to the bailee gratis, to be 
used by him. 

(8) Locatio rei. Where goods are lent to the 
bailce to be used by him for hire. 

(4) Vadim. Pawn or pledge. 

(5) Loentio operis faciendi. Where goods are 
delivered to be carried, or something is to be done 
about them, for 2 reward to be paid to the bailee. 

(6) Mandatian. <A delivery of goods to some- 
body who is to carry them, or do something about 
them, gratis. 2 Ld. Raym. 909. 

Another division, suggested by Bouvier, is as fol- 
lows: First, those bailments which are for the 
benefit of the bailor, or of some person whom he 
represents; secon, those for the benefit of the 
bailee, or some person represented by him; third, 
those which are for the benefit of both parties. 


BAILOR. The party who baits or deliy- 
ers goods to another, in the contract of bail- 
ment. 


BAIR-MAN. In old Scotch law. A poor 
insolvent debtor, left bare and naked, who 
was obliged to swear in court that he was 
not worth more than five shillings and five- 
pence. 


BAIRNS. InScotehlaw. A known term, 
used to denote one’s whole issue. Ersk. 
Inst. 8, 8,48. But it is sometimes used ina 
more limited sense. Bell. 


BAIRN’S PART. In Scotechlaw. Chil- 
dren's part; a third part of thedefunct’'s frea 
movables, debts deducted, if the wife sur- 
vive, and a half if there be no relict. 


BAITING AWIMALS. In English law. 
Procuring them to be worried bydogs. Pur- 


BALANA 


ishable on summary conviction, under 12 & 
13 Vict. c. 92, § 3. 


BALAWA. A large fish, called by Black- 
stone a “whale.” Of this the king had the 
head and the queen the tail as a perquisite 
whenever one was taken on the coast of Eng- 
land. 1 BL. Comm. 222, . 


BALANCE. Theamount remaining due 
from one person ta another on a settlement 
of the accounts involving their mutual deal- 
ings; the difference between the two sides 
(debit and eredit) of an account. 

A balance is the conclusion or result of 
the debit and credit sides of an account. It 
implies mutual dealings, and the existence of 
debt and credit, without which there could 
be no balance. 45 Mo. 574. See, alo, 7i 
Pa. St. 69. 

The term is also frequently used in the 
sense of residue or remainder; as when 4 
will speaks of “the balance of my estate.” 
3 Ired. 155; 23 8. C. 269. 


BALANCE OF TRADE. The differ- 
ence between the value of the exports from 
and importa into a country. 


BALANCE-SHEET. When itis desired 
to ascertain the exact state of a merchant’s 
business, or other commercial enterprise, at 
a given time, all the ledger accounts are 
closed up to date and balances struck; and 
these balances, when exhibited together on a 


116 


single page, and so grouped and arranged | 


as to close into each other and be summed 
up in one general result, constitute the “bal- 
ance-shest. ” 


BALCAWNIFER, or BALDAKINIFER. 
The standard-bearer of the Knights Temp- 
lar, 


BALCONIES. Smail galleries of wood 
or stone on the outside of houses. The erec- 
tion of them is regulated in London by the 
building acts. 


BALDIO. In Spanishlaw. Wasteland; 
land that is neither arable nor pasture. 
White, New Recop. b. 2, tit, 1, c. 6, § 4, and 
note. 


BALE. A pack or certain quantity of 
goods or merchandise, wrapped or packed up 
in cloth and carded round very tightly, marked 
and numbered with fignres corresponding to 
those in the bills of lading for the purpose of 
identification. Wharton. E 

Abale of cotton is a certain quaniity of 
that commedity compressed into a eubical 
form, 20 as to occupy less room than when in 
pags. 2 Car. & VP. $25. 


BAN 


BALISE, Fr. 
A buoy. 


BALIUS. In the civil law. A teacher; 
one who has the care of youth; a tutor; 3 
guardian. Du Cange; Spelman. 


BALIVA. L. Lat. In old English law. 
A bailiwick, or jurisdiction. 


BALLAST. In marineinsurance, There 
is considerable analogy between ballast and 
dunnage. ‘The former is used for trimming 
the ship, and bringing it down to a draft of 
water proper and sate for sailing. Dunnage 
is placed under the cargo to keep it from be 
ing wetted by water getting into the hold, or 
between the different parcels to keep them 
from bruising and injuring each other. 13 
Wall. 674. 


BALLASTAGE. A toll paid for the priv- 
ilege of taking up bailast from the bottom of 
a port or harbor, 


BALLIVG AMOVENDO. An ancient 
writ to remove a bailiff from his office for 
want of suificient land in the bailiwiek. Reg, 
Orig. 78, 


BALLOT. In thelaw of elections, A slip 
of paper bearing the names of the offices to 
be filled at the particular election and the 
names of the candidates for whom the elector 
desires to vote; it may be printed, or writ- 
ten, or partly printed and partly written, and 
is deposited by the voter in a “ballot-box” 
which is in the custody ofthe officers holding 


In Freneh marine law. 


| the election. 


Also the act of voting by balls or tickets. 

A ballot is a ticket folded in such a man. 
ner that nothing written or printed thereon 
can be seen. Pol. Code Cal. § 1186. 


A ballot is defined to ba “a paper ticket contain- 
ing the names of the persons for whom the elector 
intends to vote, and designating the office to which 
each person 80 named is intended by him to be 
chosen.” Thus a ballot, or a ticket, is a singie 
piece of paper containing the names of the candi- 
dates and the offices for which they are running. 
If the elector were to write the names of the can- 
didates npon his ticket twice or three or more 
times, he does not thereby make it more than one 
ticket. 28 Cal. 136. 


BALLOT-BOX. A case made of wood 
for receiving ballots. 


BALNEHARII. In the Roman law, 


| Those who stole the clothes of bathera in the 


public baths. 4 Ll. Comm. 239. 


BAN. 1. In old English and civillaw. 
A proclamation; a public notice; the an. 
nouncement of an intended marriage. Cow- 
elL An excommunication; a curae, publicly 


BAN 


pronounced. A proclamation of silence made 
by a erier in court before the meeting of 
chimpionsincombat. Id. Astatute, edict, 
or command; a fine, or penalty. 

2. In French law. The right of an- 
nouncing the time of mowing, reaping, and 
gathering the vintage, exercised by certain 
seignorial lords. Guyot, Repert. Univ. 

8. An expanse; an extent of space or ter- 
ritory; a space inclosed within certain lim- 
ifs; the limits or bounds themselves. Spel- 
man. 

4, A privileged space or territory around 
a town, monastery, or other place. 

5. In old Huropean law. <A military 
standard; athing unfurled,a banner. Spel- 
man, A summoning to a standard; a call- 
ing out of a military force; the force itself 
80 summoned; 8 national army levied by 
proclamation. 

BANAL. In Canadian:and old French 
law. Pertaining toa 6an or privileged place; 
having qualities or privileges derived from a 
ban. Thus, a banal mill is one to which the 
lord may require his tenant to carry his grain 
to be ground. 


BANALITY. In Canadian law. The 
tight by virtue of which a lord subjects his 
vassals to grind at his mill, bake at his oven, 
ete. Used also of the region within which 
this right applied. Guyot, Repert. Univ. 


BANC. Bench; the seat of judgment; 
the place where a court permanently or reg- 
ularly sits. 

The full beneh, full court. <A “sitting in 
tance” is a meeting of all the judges of a 
court, usually for the purpose of hearing ar- 
guments on demurrers, points reserved, mo- 
tions for new trial, elc., as distinguished 
from the sitting of a single judge at the as- 
Bises or al nist prius and from trials at bar. 


BANCI NARRATORES. In old En- 
glish law. Advocates; countors; serjeants. 
Applied to advocates in the common pleas 
courts. 1 Bl. Comm. 24; Cowell. 


BANCO. Ital. See Bano. A seat or 
bench of justice; also, in commerce, a word 
of Italian origin signifying a bank. 


BANCUS. In old English law and prae- 
tice. A bench or seat in the king’s hall or 
palace. Fieta, lib. 2, c. 16, § 1. 

A high seat, or seat of distinction; a seat 
of judgment, or tribunal] for the administra- 
tio: of justice. 

The English court of common pleas was 
formerly called “ Baneus.” 


117 


| 


| 


BANK 


A sitting in banc; the sittings of a court 
with its full judicial authority, or in full 
form, as distinguished from sittings at nist 
prius. 

A stall, bench, table, or counter, on which 


goods were exposed for sale. Cowell. 
BANCUS REGINE. L. Lat. The 

queen’s bench. See QuEEN’s Bencu. | 
BANCUS REGIS. Lat. The king’s 


bench; the supreme tribunal of the king aftor 
parliament. 38 Bl. Comm. 41. 


BANCUS SUPERIOR. The upper 
bench. The king’s bench was so called dur- 
ing the Protectorate. 


BAND. Inold Scotch law. 
tion calling out a military force. 


BANDIT. An outlaw; a man danned, 
or put under a ban; a brigand or robber. 
Banditti, a band of robbers. 


BANE. A malefactor. 
Cole 

Also a public denunciation of a malefactor; 
the same with what was called “hutesium,” 
hue and ery. Spelman. 


BANERET, or BANNERET. In En- 
glishiaw. A knight madein the field, by the 
ceremony of cutting off the point of his stand- 
ard, and making it, as. it were, a banner. 
Knights so made are accounted so honorable 
that they are allowed to display their arms 
in the royal army, as barons do, and may 
bear arms with supporters. They rank next 
to barons; and were sometimes called “vew- 


A proclama- 


Bract, 1. 1, t. 8, 


tliarii.” Wharton. 
BANI. Deodands, (gq. 0.} 
BANISHMENT. In criminal law. A 


punishment inflicted upon criminils, by com- 
pelling them to quit a city, place, or country 
for a specified period of time, or for life. 
See 4 Dall, 14. 

It is inflicted principally upon political offend- 
ers, “trausportation” being the word used to ex- 
press a similar punishment of ordinary criminals. 
Banishment, however, merely forbids the return 
of the person banished before the expiration of 
the sentence, while transportation invelves the 
idea of deprivation of liberty after the convict ar- 
rives at the place to which he has been carried. 
Rap. & L. 


BANK. 1. A bench or seat; the bench 
or tribunal occupied by the judges; the seat 
of judgment; a court. The full bench, or 
full court; the assembly of all the judges of 
a court. A “sitting i bank” is a meeting 
of all the judges of a court, usually for the 


Ml 


BANK 


purpose of hearing arguments on demurrers, 
points reserved, motions for new trial, etc., 
as distinguished from the sitting of a single 
judge at the assises or at nésé privs und from 
trials at bar. But, in this sense, bane is the 
more usual form of the word, 

2. An institution, of great-value in the 
commercial world, empowered to receive de- 
posits of money, to make loans, and to issue 
its prowissory notes, (designed to circulate 
a3 money, and commonly called “bank-notes” 
or “bank-bills,”) or to perform any one or 
more of these functions. 

The term “bank” is usually restricted in 
its application to an incorporated body; while 


a private individual making ib his business | 


to conduct banking operations is denominat- 
éd a “banker.” 

Also the house or place where such busi- 
ness is carried on. 


Banks in the commercial sense are of three | 


kinds, to-wit: (1) Of deposit; (2) of dis- 
count; (3) of circulation. Strictly speaking, 
the term “bank” implies a place for the de- 
posit of moncy, as that is the most obvious 
purpose of such an institution. Originally 
the business of banking consisted only in re- 


ceiving deposits, such as bullion, plate, and | 


the like, for safe-keeping until the depositor 
should see fit to draw it out for use, but the 
pusiness, in the progress of events, was ex- 
tended, and bankers assumed to discount bills 
and notes, and toloan money upon mortgage, 
pawn, or other security, and, at a still later 
period, to issue notes of their own, intended 
as a circulating currency and a medium of 
exchange, instead of gold and silver. Mod- 
ern bankers frequently exercise any two or 
even all three of those functions, but it is 
still true that an institution prohibited from 


exercising any more than one of those func- | 
tions is # bank, in the strietest commercial | 


sense. 17 Wall. 118; Rev. St. U.S. § 3407. 

3. An acclivity; an elevation or mound of 
earth; usually applied in tlis sense to the 
raised earth bordering the sides of a water- 
course. 


BANK-ACCOUNT. <A sum of money 
placed with a bank or banker, on deposit, by 
a customer, and subject to be drawn out on 
the latter’s check. The statement or com- 
putation of the several sums deposited and 
those drawn out by the customer on checks, 
entered on the books of the bank and the de- 
positor’s pass-book. 


BANK-BILLS. Promissory notes issued 
by a bank designed to circulate as money, 
and payable to the bearer on demand. 


118 


BANKRUPT 


The term “bank-bills” is familiar to eyery man 
in this country, and conveys a definite and cer- 
tain meaning. It is a written promise on tha 
part of the bank to pay to the bearer a certain sum 
of money,on demand. This term is understood by 
the community generally to mean a written prom- 
ise for the paymentoi money, Soa universal is this 
understanding that the term “bank-bills” would 
be rendered no more certain by addiug the words 
“for the payment of money.” 8 Scam. 328. 

The words “bank-bill” and “bank-note, ” in their 
popular sense, are used synonymously. 21 Ind 
136; 2 Park. Crim. R. 87. 

Bank-notes, banik-bills, and promissory notes, 
such as are issued by the directors of a bank in- 
corporated by the legislature of Vermont, mean 
the same thing; so that the expression in a@ stat- 
ute “bank-bill or promissory note” is an evident 
tautology. 17 Vt. 151. 


BANK-BOOK. <A book kept by a eus- 
tomer of a bank, showing the state of his ac- 
count with it. 


BANK-CREDITS. Accommodations al- 
lowed toa person on security given toa bank, 
lo draw money on it toa certain extent agreed 
upon, 

BANK-NOTE. A promissory note is- 
sued by a bank or authorized banker, payable 
to bearer on demand, and intended to circu- 
late as money. 


BANK-STOCK. Shares in the capital of 


| a bank; shares in the property of a bank. 


| banks. 


BANKABLE. In mercantile law 
Notes, checks, bank-bills, drafis, and other 
securities for money, received as cash by the 
Such commercial paper as is consid- 
ered worthy of discount by the bank to which 
it is offered is termed “bankabie.” 


BANKER. A private person who keeps 
a bank; one who is engaged in the business 
of banking. 


BANKER’S NOTE. A commercial in- 
strument resembling a bank-note in every 
particular except that it is given bya private 
banker or unincorporated banking institu- 
tion. 


BANKEROUT. O. Eng. Bankrupt; in- 
solvent; indebted beyond the means of pay- 
iment. 


BANKING. The business of receiving 
money on deposit, loaning money, discount- 
ing notes, issuing notes for circulation, eol- 
lecting money on notes deposited, negotiating 
bills, etc. 


BANKRUPT. A person who has com- 
mitted an act of bankruptcy; one who has 
done some act or sufiered some act to ba 
done in consequence of which, under the laws 


BANKRUPT 


of his country, he is liable to be proceeded 
against by his ereditors for the seizure and 
distribution among them of his entire prop- 
erty, : j 

A trader who secretes himself or does cer- 
fain other acta tending to defraud his cred- 
itors. 2 Bl. Comm, 471, 

Ina looser sense, an insolvent persen; a 
broken-up or ruined trader. 3 Story, 453. 

A person who, by the formal decree of a 
court, haa been declared subject to be pre- 
eseded against under the bankruptcy laws, 
or entitled, on his voluntary application, to 
take the benefit of such laws. 


BANKRUPT LAW. A law relating to 
bankrupts and the procedure against them in 
the courts. A law providing a remedy for 
the creditors af a bankrupt, and for the re- 
lief and restitution of the bankrupt limself. 

A law which, upon a bankrupt’s surren- 
dering all his properly to commissioners for 
tha benefit of his creditors, discharges him 
from the payment of his debts, and all lia- 
bility to arrest or suit for the same, and se- 
cures his future acquired property from a lia- 
bility to the payment of his pastdebts. Web- 
ster. 


A bankrupt law is distinguished from the ordi- 
tary law between debtor and ¢reditar, as invoiv- 
ing these three general principles: (1) A sum- 
mary and immediate seizure of all the debtor's 
property; (2) a distribution of it among tue cred- 
itors in general, instead of merely applying a por- 
tion of it to the paymont of the individuul com- 
plainant; and (8) the discharge of the debtor from 
future liability for the debits then existing. 

The leading distinction between a bankrupt law 
aud an insolvent law, in the proper technical sense 
of the words, consists in the character of the per- 
sons upon whom it is designed to operate,—the 
former contemplating as its objects bankrupts 
only, that is, traders of a certain description; the 
latter, insolvents in general, or persons unable to 
pay their debts. This has led to a marked separa- 
tion between the two systems, in principle and in 
practice, which in England has always been care- 
fully maintained, although in the United States it 
has of late been effectually disregarded. In fur- 
ther illustration of this distinction, it may be ob- 
served that a bankrupt law, in its proper sense, is 
a remedy intended primarily for the benefit of 
creditors; it is set in motion at their instance, and 
operates upon the debtor againsi his will, (in in- 
vituim,) although in its result it effectually dis- 
charges him fromhiedebts. An insolventlaw, on 
the other hand, is chiefly intended for the benefit 
of the debtor, and is set in motion at his instance, 
though jeas effective as a discharge in its final re- 
sult, 5 Hill, 327. 

The ouly substantial difference between a strict- 
ly bankrupt law and us iasolvent law lies in the 
tireumstance that the former affords relief upon 
the application of the creditor, aud the latter upon 
the application of thedebtor. In the general char- 
avter of the remedy, there is no difference, towey- 


113 


BANNI 


er much ths modes by which the remedy may ba 
administered may vary. $7 Cal, 222. 


BANKRUPTCY. 1. The state or.condi- 
tion of one who is 2 bankrupt; amenability 
to the bankrupt laws; the condition of one 
who has committed an act of bankruptey, and 
is liable to be proceeded against by his cred- 
itors theretor, or of ons whose circumstances 
are such that he is entitled, on his voluntary 
application, to take the benefit of the bank- 
Tupt laws. The term is used in a looser 
sense as synonymous with “insolvency,”— 
inability to pay one’s debts; the stopping and 
breaking up of business because the trader is 
broken down, insolvent, ruined. See2 Story, 
354, 359, 

2. The term denotes the proceedings taken, 
under the bankrupt jaw, against a person (or 
firm or company) to have him adjudged a 
bankrupt, and to have his estate adminis- 
tered for the benefit of the creditors, and di-. 
vided among them. 

3. That branch of jurisprudence, or system 
of law and practice, which is concerned with 
the definition and ascertainment of acts of 
bankruptey and the administration of bank- 
Tupts’ estates for the benefit of their credit- 
ors and the absolution and restibution of 
bankrupts. 

As to the distinction between bankruptcy and 
insolvency, it may be said that insolvent laws op- 
erate at the instances of an imprisoned debtor; 
bankrupt laws, at the instance of a creditor. But 
the line of partition between baukrupt and insolv- 
ent laws is not so distinctly marked as to define 
what belongs exclusively to the one and not to the 
other class of laws. 4 Wheat. 122. 

Insolvency means a simple inability to pay, aa 
debts should become payable, whereby the debtors 
business would ba broken up; bankruptey means 
the particular legal status, to be ascertained and 
declured by a judicial decree. 2 Ben, 198. 

BANKRUPTCY COURTS. Courts for 
the administration of the bankrupt laws. 
The present English bankruptey courts are 
the London bankruptey court, the court of 
appeal, and the local bankruptey courts cre- 
ated by the bankruptey act, 1869. 


BANLEUCA. An old law term, signi- 
fying a space or tract of country around a 
city, town, or monastery, distinguished and 
protected by peculiar privileges. Spelman. 


BANLIETU, or BANLIEUE. A French 
and Canadian law term, having the same 
meaning as banleuca, (q. v.) 


BANNERET. Sce BANERET. 


BANNI OR BANNITUS. In old law, 
ene under a ban, (g. #.;) an outlaw or ban- 
ished man. J3ritt. ce. 12, 13; Calvin. 


G 


H 


K 


L 


Ie 


BANNI NUPTIARUM 120 BARE TRUSTEE 
BANNI NUPTIARUM. L. Lat. In , constructive, of the court. Thus, a trial at 
old English law. The bans of matrimony. | bar is one had before the full court, distin- 


BANNIMUS. We ban or expel. The 
form of expnision of a member from the 
University of Oxford, by affixing the sen- 
tence in some public places, as a promulga- 
tion of it. Cowell. 


BANNIRE AD PLACITA, AD MO- 
LENDINUM. Tosummon tenants to serve 
at the lord’s courts, to bring corn to be 
ground at his mill. 


BANNUM. A ban, (gq. v.) 


BANNUS. Inold Englishlaw. A proc- 
Jamation. Bannziws regis; the king’s proe- 
lamation, made by the voice of 4 herald, for- 
bidding all present at the trial by combat to 
interfere either by notion or word, whatever 
they mighi see or hear. Bract. fol. 142. 


BANQUE. A bench; the table or coun- 
ter of atrader, merchant, or banker. Banque 
vowte; a broken bench or counter; bankrupt. 


BANS OF MATRIMONY. A public 
announcement of an intended marriage, re- 
quired by the English law to be made ina 
ehurch or chapel, during service, on three 
eonseenutive Sundays before the marriage is 
celebrated. The object is to afford an oppor- 
tunity for any person to interpose an objection 
if he knows of any impediment or other just 
cause why the marriage should nottake place. 
The publication of the bans may be dispensed 
with by procuring a special license to marry. 


BANYAN. In€East Indian law. <A Hin- 
doo merchant or shop-keeper. ‘The word is 
used in Bengal to denote the native who man- 
ages the money concerns of a European, and 
sometimes serves him as an interpreter. 


BAR. 1. A partition or railing running 
across a court-room, intended to separate the 
general public from the space occupied by the 
judges, counsel, jury, and others concerned 
in the trialof acause, In the English courts 
itis the partition behind which all outer-bar- 
risters and every member of the public must 
stand. Solicitors, being officers of the court, 
are adinitted within it; as are also queen’s 
counsel, barristers with patents of precedence, 
and serjeants, in virtue of theirranks. Par- 
ties who appear in person also ure placed 
within the bar on the tloor of the court. 

2. The terra alsodesignates a particular part 
of the court-room; for example, the place 
where prisoners stand af their trial, whence 
the expression “prisoner at the bar.” 

%, li furthordenotes the presence, actual or 


guished from a trial had before a single judge 
at nisi prius. So the “case at bar” is the 
case now before the court and under ils con- 
sideration; the case being tried or argued. 

4. In the practice of legislative boilies, the 
bar is the outer boundary of the house, and 
therefore all persons, not being members, 
who wish to address the honse, or are sul 
moned to it, appear at the bar for that pur, 
pose. 

5. In another sense, the whole body of at- 
torneys and counsellors, or the members of the 
legal profession, collectively, are figuratively 
ealled the “bar,” from the place which they 
usually oecupy in court. They are thus dis- 
tinguished from the “bench,” which term 
denotes the whole body of judges. 

6. In the law of contracts, “bar” means an 
impediment, an obstacle, or preventive bar- 
rier. Thus, relationship within the prohib- 
ite degrees is a bar to marriage. 

7. It further means that which defeats, an- 
nuls, cuts off, or puts an end to. Thus,a 
provision “in bar of dower” is one which has 
the effect of defeating or cutting off the dower- 
tights which the wife would otherwise be- 
come entitled to in the particular land. 

8. In pleading, it denoted a special plea, 
constituting a sufficient answer to an action 
at law; and so called because it barred, i. ¢., 
prevented, the plaintiff from further prose 
cuting it with effect, and, if established by 
proof, defeated and destroyed the action alto- 
gether. Now called a special “plea in bar.” 
See Plea in BAR. 


BAR FEE. InEnglishlaw. A fee taken 
by the sheriff, time out of mind, for every 
prisoner who is acquitted. Bac. Abr. “Ex- 
tortion.” Abolished by St. 14 Geo. III. c. 
26; 55 Geo. III. c. 50; 8 & 9 Vict. c. 114. 


BARAGARTA. Span. A concubine, 
whom a man keeps alone in his house, un- 
eonnected with any other woman. Las Par- 
tidas, pt. 4, tit. 14. 


Baratriam committit qui propter pe- 
cuniam justitiam baractat. He is guilty 


of barratry who “or money sells justice. 
Bell. 
BARBANUS. In old Lombardic law. 


An uncle, ( patruts.) 


BARBICANAGE. Inold Europeanlaw, 
Money paid to support a barbican or watch- 
tower. 


BARE TRUSTER. A person to whose 
fiduciary office no dulies were originally at. 


BARET 


tached, or who, although such duties were 
originally attached to his office, would, on the 
requisition of his cestuts qui trust, be com- 
pellable in equity to convey the estate to 
them or by their direction. 1 Ch. Div. 279. 


BARET. L. Fr. A wrangling suit. 
Britt. c. 92; Co. Litt. 368. 


BARGAIN. A mutual undertaking, con- 
tract, or agreement. 

A contract or agreement between two par- 
ties, the one to sell goods or lands, and the 
other to buy them. & Mass. 360. See, also, 
6 Conn. 91; 5 Kast, 10; 6 East, 307. 

“If the word ‘agreement’ imports a mut- 
ual act of two parties, surely the word ‘ bar- 
gain’ is not less significative of the consent 
oftwo. In apopular sense, the former word 
is frequently used as declaring the engage- 
ment of one only. 
money or to perform some other act, and the 
word is then used synonymously with ‘ prom- 
ise’ or ‘engage.’ But the word ‘ bargain’ is 
Seldom used, unless to express a mutual con- 
tract or undertaking.” 17 Mass. 1381. 


BARGAIN AND SALE. In convey- 
ancing. The transferring of thelproperty of 
a thing from one to another, upon valua- 
ble consideration, by way of sale. Shep. 
Touch. (by Preston,) 221. 

A contract or bargain by the owner of land, 
in consideration of money or its equivalent 
paid, to sell land to another person, called 
the “bargainee,” whereupon a use arises in 
favor of the latter, to whom the seisin is 
transferred by force of the statute of uses. 
2 Washb. Real Prop. 128. 

The expression “bargain and sale” is also 
applied to transfers of persunulty, in cases 
where there is first an executory agreement 
for the sale, (the bargain,) and then an actual 
and completed sale. 

The proper and technical wordsjto denote 
@ bargain and sale are “bargain and sell; ” 
but any other words that are sufficient to 
raise a use upon a valuable consideration are 
Buflicient. 2 Wood. Cony. 15; 3 Johns. 484, 


BARGAINEE. The party to a bargain 
to whom the subject-matter of the bargain 
or thing bargained for is to go; the grantee 
ina deed of bargain and sale. 


BARGAINOR. The party to a bargain 
who is to perform the contract by delivery 
of the subject-matter. 


BARK. Issometimes figuratively used to 
denote the mere words or letter of an instru- 
ment, or outer covering of the ideas sought 


A man may agree to pay | 


121 


BARONS OF THE EXCHEQUER 


to be expressed, as distinguished from its 
inner substance or essential meaning. “If 
the bark makes for them, the pith makes for 
us.” Bacon. 


BARLEYCORN. 
The third of an inch. 


BARMOTE COURTS. Courts held in 
certain mining districts belonging to the 
Duchy of Lancaster, for regulation of the 
mines, and for deciding questions of title and 
other matters relating thereto. 8 Steph. 
Comm, 347, note b. 


BARNARD’S INN. An inn of chan- 
cery. See INNS OF CHANCERY. 


In linear measure. 


BARO. An old law term signifying, 
originally, a “man,” whether slave or free. 
In later usage, a “freeman,” a “strong 
man,” a “good soldier,” » “baron;” also a 
“vassal,” or “feudal tenant or client,” and 
“husband,” the last being the most common 
meaning of the word. 


BARON. 
general title of nobility in England. 
Comm, 898, 399, 

A particular degree or title of nobility, 
next to a viscount, 

A judge of the court of exchequer. 
Comm. 44; Cowell. 

A freeman. Co. Littl. 58a, 
holding directly from the king. 

A husband; occurring in this sense in the 
phrase “baron et feme,” husband and wife. 


BARON AND FEME. Husband and 
wife. A wife being under the protection 
and influence of her bao, lord, or bus- 
band, is styled a “feme-covert,” (femina vi- 
ro cooperta,) and her state of marriage is 
called her “coverture.” 


BARONAGHE. In English law. The 


collective body of the barons, or of the no- 
bility at large. Spelman. 


BARONET. An English name or title 
of dignity, (but nota title of nobility,) estab- 
lished A. D. 1611 by James I. It is created 
by letters patent, and descends to the male 
heir, Spelman. 


BARONS OF THE CINQUE PORTS. 
Members of parliament from these ports, 


A lord or nobleman; the most 
LBL. 


8 BL 


Also a vassal 


viz.: Sandwich, Romney, Hastings, Hythe, 
anit Dover. Winchelsea and Rye have been 
added. 


BARONS OF THE EXCHEQUER. 
The six judges of the court of exehequer in 
England, of whom one is styled the “chief 


BARONY 


baron;” answering to the justices and chief 
justice of other courts. 6 

BARONY. The dignity of a baron; a! 

species of tenure; the territory or lands held | 
‘by a baron. Spelman. 

BARONY OF LAND. In England, a 
quantity of land amounting to 15 acres. In 
ireland, a subdivision of a county. 

BARRA, or BARRE. Inold practice. A 
pleain bar. The bar of the court. A bar- 
rister. 


BARRATOR. One whois guilty of the 
erime of barratry. 


BARRATROUS. Fraudulent; having 
the character of barratry. 
BARRATRY. In maritime law. An 


act committed by the master or mariners of a 
vessel, for some unlawful or fraudulent pur- 
pose, contrary to their duty to the owners, 
whereby the latter sustain injury. It may 
include negligence, if so gross as to evidence 
fraud. 8 Cranch, 49; 2 Cush. 511; 3 Pet. 
230. 

Barratry is some fraudulent act of the master or 
mariners, tending to their own benefit, to the prej- 
udice of the owner of the vessel, without his priv- 
ity or consent. 2 Caines, 67. 

Barratry is a generic term, which includes many 
acts of various kinds and degrees. It compre- 
hends any unlawful, fraudulent, or dishonest act of 
the master or mariners, and every violation of duty 
by them arising from gross and culpable negligenca 
eontrary to their duty to the owner of the vessel, 
and which might work loss or injury to him in the 
course of the voyage insured. A mutiny of the 
crew, and forcible dispossession by them of the 
master and other officers from the ship, is a form 
of barratry. 9 Allen, 217. 


In criminal law. Common barratry is 
the practice of exciting groundless judicial 
proceedings. Pen. Code Cal. § 158; Pen. 
Code Dak. § 191. 

Also spelled “Barretry,” which see. 


In Seotch law. ‘The crime committed by 
a judge who receives a bribe for his judg- 
ment. Skene; Brande. 


BARREL. A measure of capacity, equal 
to thirty-six gallons. 

In agricultural and mereantile parlance, as 
also in the inspection laws, the term “barrel” 
means, prima facie, not merely a certain 
quantity, but, further, a certain state of the 
article; namely, that it is in a cask, 11 
Jred. 72. 


BARREN MONEY. In the civil law. 
A debt which beara no interest. 


BARRENNESS. Sterility; the incapac- 
ity to bear children. 


< 


= 


12 


BASE ESTATE 


BARRETOR. Incriminallaw. Acom- 
mon mover, excifer, or maintainer of suits 
and quarrels either in courts or elsewhere in 


the country; a disturber of the peace who 


spreads false rumors and calumnies, whereby 
discord and disquiet may grow among neigh- 
bors. Co, Litt. 368. 


BARRETRY. In criminal law. 
act or offense of a barretor, (gq. v.;) usually 
called “common barretry.” The offense of 
frequently exciting and stirring up suits and 
quarrels, either at law or otherwise. 4 Bi. 
Comm. 154; 4 Steph. Comm. 262. 


BARRIER. In mining law and the usaga 
of miners, is a wall of coal left between 
two mines, 


BARRISTER. In Englishlaw. An ad- 
vocute; one who has been called to the bur, 
A counsellor learned in the law who pleads 
at the bar of the courts, and who is engaged 
in conducting the trial or argument of causes. 
To be distinguished from the attorney, who 
draws the pleadings, prepares the testimony, 
and conducts matters out of court. 

Inner barrister. A serjeant or King's 
counsel who pleads within the bar. 

Ouster barrister, One who pleads “ouster” 
or without the bar. 

Vacation barrister. A counsellor newly 
called to the bar, who is to attend for several 
long vacations the exercise of the house. 


BARTER. A contract by which parties 
exchange goods or commodities for other 
goods. It differs from sade, in this: that in 
the latter transaction goods or property are 
always exchanged for money. 

This term is not applied to contracts con- 
cerning land, but to such only as relate to 
goods and chattels. Barter is a contract by 
which the parties exchange goods. 4 Biss, 
123. 

BARTON. Inold Englishlaw. MThede 
mesne land of a manor; atarm distinct from 
the mansion. 

BAS CHEVALIERS. In old English 
law. Low, or inferior knights, by tenure of 
a base military fee, as distinguished from 
barons and bannerets, who were the chief 
or superior knights. Cowell. 


BAS VILLE. 
urbs of a town. 


BASH COURT. In English law. Any 
inferior court that is not of record, as a court 
baron, etc. Kitch. 95, 96; Cowell. 

BASE ESTATE. The estate which “base 
tenants” (g. ».) have in their land. Cowell. 


InFrenchlaw. The sub- 


The 


| 


} 
} 


| 
| 
| 


BASE FEE 


SE FFE. In English law. An es- 
fee which has a qualification subjoined 
o, and which must be determined 
ever the qualification annexed to it is 
;anend. 2 Bl. Comm. 109. 


_ BASE-INFEFTMENT. In Scotch law. 
A disposition of lands by a vassal, to be held 
of himself. 


BASE RIGHT. InScotchlaw. A sub- 
ordinate right; the right of a subvassal in 
the lands held by him. Bell. 


_ BASE SERVICES. In fendal law. 
” Such services as were unworthy to be per- 
formed by the nobler men, and were per- 
formed by the peasants and those of servile 
tank. 2 BI. Comm. 61. 


BASE TENANTS. Tenants who per- 
formed to their lords services in villenage; 
tenants who held at the will of the lord, as 
distinguished from frank tenants, or free- 
holders. Cowell. 


BASE TENURE. A tenure by villen- 
age, or other customary service, as distin- 
guished from tenure by military service; or 
from tenure by {ree service. Cowell, 


BASILHEUS. A Greek word, meaning 
“king.” <A titleassumed by the emperors of 
the Eastern Roman Empire. It is used by 
Justinian in some of the Novels; and is said 
to have been applied to the English kings be- 
fore the Conquest. See 1 BI. Comm. 242. 


BASILICA. The name given to a com- 
pilation of Roman and Greek law, prepared 
about A. D. 880 by the Emperor Basilius, 
and published by his successor, Leo the Phi- 
losopher. It was written in Greek, was 
mainly an abridgment of Justinian's Corpus 
Juris, and comprised sixty books, only a por- 
tion of which are extant. It remained the 
law of the Bastern Empire until the fall of 
Constantinople, in 1453. 


BASILS. In old English law. <A kind 
of money or cvin abolished by Henry L. 


BASIN. Im admiralty law and marine 
insurances. A part of the sea inclosed in 
rocks. 13 Amer. Jur. 286. 


BASKET TENURE. In feudal law. 
Lands held by the service of making the 
king’s baskets. 


BASSE JUSTICE. In feudallaw. Low 
justice; the right exercised by feudal lords 
of personaliy trying persons charged with 
trespasses or minor offenses. 


123 


| lock. 


BATABLE-GROUND 


BASTARD. An illegitimate child; a 
child born of an unlawful intercourse, and 
while its parents are not united in marriage. 

A child born after marriage, but under 
cireumstances which render it impossible 
that the husband of his mother can be his 
father. 6 Bin. 283. 

One begotten and bora out of lawful wed- 
2 Kent, Comm. 208, 

One born of an illicit union. 
La. arts. 29, 199. 

A bastard is a child born out of wedlock, 
and whose parents do nol subsequently inter- 
marry, or a child the issue of adulterous in- 
tercourse of the wife during wedlock. Code 
Ga. 1882, § 1797. 


BASTARD HIGNE. In old English 
law. Bastard elder. If a child was born of 
an illicit connection, and afterwards the 
parents intermarried and had another son, 
the elder was called “bastard eigne,” and 
the younger “mulier puisne,” %. e., after- 
wards burn of the wife. See 2 Bl. Comm, 


Civil Code 


248. 
BASTARDA, In old English law, A 
female bastard. Fleta, lib. 5, ¢. 5, § 40. 


BASTARDIZE, To declare one a bas- 
tard, as a court does. ‘To give evidence to 
prove one a bastard. A mother (married) 
cannot bastardize her child. 


Bastardus nuilius est filius, aut filius 
populi. A bastard is nobody’s son, or the 
son of the people. 


Bastardus non potest habere heredem 
nisi de corpore suo legitime procreatum. 
A bastard can have no heir unless it be one 
lawfully begotten of his own body. ‘Tray. 
Lat. Max. 51. 


BASTARDY,. The offense of begetting 
a bastard child. The condition of a bastard. 


BASTARDY PROCESS. The method 
provided by statute of proceeding against the 
putative father to secure a proper muainte- 
nance for the bastard. 


BASTON. In old English law, a baton, 
club, or stalf. A term applied to officers of 
the wardens of the prison called the “Fleet,” 
because of the staff carried bythem. Cowell; 
Spelman; Termes de la Ley. 


BATABLE-GROUND. Land that isin 
controversy, or about the possession of which 
there is a dispute, as the lands which were 
situated between England and Scotland be- 
fore the Union. Skene. 


R 


BATAILLE 


BATAILLE. In old English law. Bat- 
. tel; the trial by combat or dueliumn. 


BATH, KNIGHTS OF THE. In En- 
rlishlaw. A military order of knighthood, in- 
stituted by RichardII. The order was newly 
regulated by notifications in the London Ga- 
zette of 25th May, 1847,,and 16th August, 
1850. Wharton. 


BATIMENT, In French marine law. A 
vessel or ship. 


BATONNIER. The chief of the French 
bar in its various centres, who presides in 
the council of discipline. Arg, Fr. Mere. 
Law, 546. 


BATTEL. 
battel. 


BATTEL, WAGER OF. Mold English 
law. A form of trial anciently used in mill- 
tary cases, arising in the court of chivalry 
and honor, in appeals of felony, in criminal 
cases, and in the obsolete real action called a 
“writ of action.” ‘The question at issue was 
decided by the result of a personal combat 
between the parties, or, in the case of a writ 
of right, between their champions. 


BATTERY. <Any unlawful beating, or 
other wrongful physical violence or con 
straint, inflicted on a human being without 
his consent. 2 Bish. Crim. Law, § 71. 

A battery is a willful and unlawful use of 
force or violence upon the person of another. 
Pen, Code Cal. § 242; Pen. Code Dak. § 306. 

The actual offer to use force to the injury cf an 
other person is assault; the use of it is battery; 


hence the two terms are coummonly combined in the 
term “assault and battery.” 


BATTURE. In Louisiana. A marine 
term used to denote a bottom of sand, stone, 
or rock mixed together and rising towards the 
surface of the water; an elevation of the bed 
of a river under the surface of the water, 
since it is rising towardsit; sometimes, how- 
ever, used to denote the same elevation of tha 
bank when if has risen above the surface of 


Trial by combat; wager of 


the water, or is as high as the land on the | 


outside of the bank. In this latter sense it is 
synonymous with “alluvion.” It means, in 
common-law lunguage, land formed by ac- 
cretion. 2 Amer. & Eng. Enc. Law, 157, 
See 6 Mart. (La.) 216; 3 Woods, 117. 


BAWD. One whoprocures opportunities 
for persons of opposite sexes to cohabit in an 
illicit manner; who may be, while exercising 
the trade of a bawd, perfectly innocent of 
committing in his or her own proper person 


124 


Se 


BEACON 


the crime either of adultery or of fornication. 
See 4 Mo. 216. 


BAWDY-HOUSE. A house of prostitu- 
tion; a brothel. A house or dwelling wmain- 
tained for the convenience and resort of per- 
sons desiring unlawfal sexual connection. 


BAY. <A pond-head made of a great 
height to keep in water for the supply of a 
mill, ete., so that the wheel of the mill may 
be turned by the water rushing thence, 
through a passage or flood-gate. St. 27 Eliz. 
ce. 19. Also an arm of the sea surrounded by 
land except at the entrance. ‘ 

In admiralty law and marineinsuranece. A 
bending or curving of the shore of the sea or 
ofalake. 14.N. 0.477. An opening into 
the land, where the water is shut in on all 
sides except at the entrance. 13 Amer. Jur. 
286. 

BAYLEY. Inold Englishlaw. Builiff. 
This term igs used in the laws of the colony of 
New Plymouth, Mass., A. D. 1670, 1671. 
Burrill. 


BAYOU. A species of creek or stream 
common in Louisiana and Texas. An out- 
let from a swamp, pond, or lavoun, toa river, 
or the sea. See 8 How. 48, 70. 


BEACH. This term, in its ordinary sig- 
nification, when applied to a place on tide- 
waters, means the space between ordinary 
high and low water mark, or the space over 
which the tide usually ebbs and flows. It is 
a term not more significant of a sea margin 
than “shore.” 18 Gray, 257. 

The term designates land washed by tho sea and 
its waves; is synonymous with “shore.” 23 Ma. 
180. 

When used in reference to places near the sea, 
beach means the land between the lines of high 
water and low water, over which the tide ebbs and 
flows. 48 Me. 68. 

Beach means the shore or strand. 15 Me, 237. 

Beach, when used in reference to places any- 
where in the vicinity of the sea, means the terri- 
tory lying between the lines of high water and low 
water, over which the tide ebbsand flows. It isin 
this respect synonymous with “shore,” “strand,” 
or “flats.” 5 Gray, 828, 335. 

Beach generally denotes land between high und 
low water mark. 6 Hun, 257. 

To “beach” a ship is to run it upon the 
beach or shore; this is frequently found nec- 
essary in case of fire, a leak, ete, 


BBACON,. A light-house, or sea-mark, 
formerly used to alarm the country, in case 
of the approach of an enemy, but now used 
for the guidance of ships at sea, by night, as 
well as by day. 


BEACON AGE 


-EACONAGE. Money paid for the 
tenance of a beacon or signal-light,. 


BEADLE. In English ecclesiastical law. 
inferior parish officer, who ig chosen by 
vestry, and whose business is to atlend 
“the vestry, to give notice of ils meetings, to 
exectte its orders, to attend upon inquests, 
and to assist the constables. Wharton. 


BEAMS AND BALANCE. Instru- 
ments for weighing goods and merchandise. 


BEAR. In the language of the stock ex- 
change, this term denotes one who speculates 
for afall in the market. 


BEARER. One who carries or holds a 
thing. When a check, note, draft, etc., is 
payable to “bearer,” it imports that the con- 
tenia thereof shall be payable to any person 
who may present the instrument for pay- 
ment, 


BEARERS. Inold Englishlaw. Those 
who bore down upon or oppressed others; 
maintainers. Cowell. 


BEARING DATE. Disclosing a date 
on its face; having a certain date, These 
words are often used in conveyancing, and 
in pleading, to introduce the date which has 
bees put upon an instrument. 


BEAST. Ananimal; a domestic animal; 
A quadruped, such as may be used for food 
or in labor or for sport. 


BEASTGATE. InSuffolk, England, im- 
ports land and common for one beast. 2 
Strange, 1084; Rose. Real Act. 485, 


BEASTS OF THE CHASE. In English , 
law. The buck, doe, fox, martin, and roe. 
Co. Litt. 233¢. 


BEASTS OF THE FOREST. In En- 
glish Jaw. The hart, hind, hare, boar, and 
wolf. Co. Litt. 233. 


BEASTS OF THE PLOW. An old 
term for animals employed in the operations 
of husbandry. 


BEASTS OF THE WARREN. In 
English law. Hares, coneys, and roes. Co. 
Litt. 25338; 2 Bl. Comm. 39, 

BEAT. To beat, ina legal sense, is not 
merely to whip, wound, or hurt, but includes 
«Any unlawful imposilion of the hand or arm. 


The slightest touching of another in anger | 
| isa batlery. 60 Ga. 511. 


BEAU-PLEADER, (to plead fairly.) In | 
English law. An obsclete writ upon the 
statute of Marlbridge, (52 Men. UL. ¢. 11,) 


125 


BEER-HOUSE 


which enacts that neither in the circuits of 
the justices, nor in counties, hundreds, or 
courts-baron, any fines shall be taken for 
fair-pleading, #. e., for not pleading fairly or 
aptly to the purpose; upon this statute, then, 
this writ was ordained, addressed tothe sher- 
iff, bailiff, or him who shall demand such 
fine, prohibiting him to demand it; an aiias, 
pluries, and attachment followed. Fitzh. 
Nat. Brev. 596. 


BED. The hollow or channel of a water- 
course; the depression between the banks 
worn by the regular and usual flow of the 
water. 

“The bed is that soil so usually covered 
by water as to be distinguishable from the 
banks by the character of the soil, or vegeta- 
tion, or both, produced by the common pres- 
ence and action of flowing water.” Curtis, 
J., 13 Tow. 426. 

The term also occurs in the phrase “divorce 
from bed and board,” @ mensa ef thoro; 
where it seems to indicate the right of co- 
habitation or marital intercourse. 


BED OF JUSTICH, Inold French law, 
The seat or throne upon which the king sat 
when personally present in parliament; hence 
it signified the parliament itself. 


BEDEL. InEnglishlaw. A crier or mes- 
senger of court, Who summons men to appear 
and answer therein. Cowell. 

An officer of the forest, similar to a sher- 
iff’s special bailiff. Cowell. 


A collector of rents for the king, Plowd. 
199, 200. 
A well-known parish officer. See BEADLE. 


BEDELARY. ‘The jurisdiction of a be- 
del, as a bailiwick is the jurisdiction of a 
bailiff. Co. Litt. 2346; Cowell. 


BEDEREPE. A service which certain 


| tenants were anciently bound to perform, as 


to reap their landlord’s corn at harvest. Said 
by Whishaw to be still in existence in some 
parts of England. Blount; Cowell; Whi- 
sliaw. 


BEER. A liquor compounded of malt 
and hops. 

In its ordinary sense, denotes a beveraze 
which is intoxicating, and is within the fair 
meaning of the words “strong or spirituous 
liquors,” used in the statutes on this subject. 
3 Park. Crim. R. 9; 3 Denio, 487; 21 N. Y. 
173. ‘othe contrary, 20 Barb. 246. 

BEER-HOUSEH. In English law. A 


place where beer is sold to be consumed on 
the premises: as distingnished from a “beer- 


BEFORE 


shop,” which is a place where beer is sold to 
be consumed off the premises. 16 Ch. Div. | 
721. 


BEFORE. Prior to; preceding. In the 
presence of; under the official purview of; as 
in a magistrate’s jurat, “before me person- 
ally appeared,” ete. 4 

In the absence o! any statutory provision | 
governing the computation of time, the au- 
thorities are uniform that, where an act is 
required to be done a certain number of days 
or weeks before a certain other day upon 
which another act is to be done, the day upon 
Which the first act is done is to be excluded 
from the computation, and the whole num- 
ber of the days or weeks must intervene be- 


fore the day fixed for duing the second act. | “- : j : 
| with cach other, as well as their allies active. 


63 Wis. 44, 22 N. W. Rep. 844, and cases 
cited. 


BEG. To solicit alms or charitable aid. 
The act of a cripple in passing along the side- 
walk and silently holding out his hand and 
receiving money from passers-by is “begging 
for alms,” within the meaning of a statute 
which uses that phrase. 3 Abb. N.C. 65. 


BERGA, <A land measure used in the East | 
Indies. In Bengal it is equal to about a 
third part of an acre. 


BEGGAR. One who lives by begging | 
charity, or who has no other means of sup- 
port than solicited alms. 


BEGUM. In India. 
woman of high rank. 


BED.AL#. <A witness testifies on “hbe- 
balf” of the party who calls him, notwith- 
standing his evidence proves to be adverse 
to that party’s case. 65 Ill, 274, See, fur- 
ther, 12 Q. B. 693; 18 Q. B. 512. 


EBEEROUAVIOR. Manner of behaving, 
whether good or bad; conduct; manners; 
carriage of one’s self, with respect to pro- 
priety and morals; deportment. Webster. 

Surety to be of goud behavior is guid to be | 
a larger requirement than surety to keep the 
peace. 


BEHETRIA. In Spanish law. Lands 


situated in places where the inhabitants had 
the right to select their own lords, 


A lady, princess, 


BEHOOF. Use; benefit; profit; service; 
advantage. It occurs in conveyances, e. g., 
“to his and their use and behoof.” 


126 


| dence,” and “testimony.” 


BENCH WARRANT 


or proof addressed to the judgment. Belief 
is to be distinguished from “proof,” “evi- 
See EvIDENCcE. 


With regard to things which make not a very 
deep impression on the memory, it may be called 
“belief.” “Knowledge” is nothing more than a 
man’s firm belief. The difference is ordinarily 


| merely in the degree; to be judged of by the court, 


when addressed to the court; by the jury, when 
addressed to the jury. 9 Gray, 274. 

The distinction between the two mental condi- 
tions seems to be that knowledge is an assurance 
of a fact or proposition founded on perception by 
the senses, or intuition; while belief is an assur- 
ance guined by evidence, and from otler persons. 
Abbott. 


BELLIGHRENT. Ininternational law. 
A term used to designate either of two na- 
tions which are actually in a state of war 


ly co-operating; as distinguished from a na- 


| tion whieh takes no part in the war and 


Maintains a strict indifference as between 
the contending parties, cailed a “neutral.” 


Bello parta cedunt reipublice. Things 


| acquired in war beleng or go tothestate. 1 


Kent, Comm. 101; 5 C. Rob. Adm. 178, 181; 


| 1 Gall. 558. The right to all captures vests 


BELIEF. <A conviction of the truth of 
a proposition, existing subjectively in the | 


mind, and induced by argument, persuasion, | 


primarily in the sovercign. A fundamental 


maxim of public law. 


BELLUM. In public law. War. An 
armed contest between nations; the state of 
those who foreibly contend with each other, 
Jus belli, the law of war. 


BELOW. In practice. Inferior; of in- 
ferior jurisdiction, or jurisdiction in the first 
instance, The court from which a canse ia 
removed for review is called the “court be- 
low.” 

Preliminary; auxiliary or instrumental. 
Bail to the sheriff is called “bail below,” as 
being preliminary to and intended to secure 
the putting in of bail above, or special 
bail. 


BENCH. A seat of judgmentor tribunal 
for the administration of justice; the seat 
oceupied by judges in courts; also the court 
itself, as the “King’s Bench,” or the aggre- 


| gate of the judges composing a court, as in 


the phrase “before the full bench,” 

The collective body of the juiiges in a state 
or nation, as distinguished from the body of 
attorneys and advocates, who are called the 
“bar,” 

In English ecclesiastical law. 
gate body of bishops. 


The aggre- 


BENCH WARRANT. Process issued 
by the court itself, or “from the bench,” for 


LBENCHERS . 
the attachment or arrest of a person; either 
in case of contempt, or where an indictment 
has been found, or to bring in a witness who 
does not obey the subpena. So called to dis- 
tinguish it from a warrant issued by a jus- 
tice of the peace, alderman, or commissioner. 


BENCHERS. In English law. Seniors 
in the inns of court, usually, but not neces- 
sarily, queen’s counsel, elected by co-optation, 
and having the entire management of the 
property of their respective inns. 


BENS. Lat. Well; in proper form; le- 
gally; sufficiently. 


Benedicta est expositio quando res 
redimitur 4 destructione. 4 Coke, 26. 
Blessed is the exposition when anything is 
saved from destruction. It is a laudable in- 
terpretation which gives effect to the instru- 
ment, and does not ailow its purpose to be 
frustrated. 


BENEFICH. In ecclesiastical law. In 
its technica) sense, this term includes ecclesi- 
astical preferments to which rank or public 
oilice is attached, otherwise described as ecele- 
sinstical dignities or offices, such as bishop- 


rics, deaneries, and the like; but in popular | 


acceptation, it is almost invariably appropri- 
ated to rectories, vicarages, perpetual cu- 


racies, district churches, and endowed chap- | 


elried. 3 Steph. Comm. 77. 

“Denefice” is a term derived from the feu- 
dal law, in which it signified a permanent 
stipendiary estate, or an estate held by feu- 
dal tenure, 
Bl. Comm. 107. 


BENEFICE DE DISCUSSION. In 
French law. Benefit of discussion. The 
Tight of a guarantor to require that the cred- 
itor should exhaust his recourse against the 
principal debtor before baying recourse tu 
the guarantor himself. 


BENEFICE DE DIVISION. In 
French law. Benefit of division; right of 
contribution as between co-sureties. 

BENEFICH DINVENTAIRE. In 
French law. <A term which corresponds to 


the benefictuin inventarit of Roman law, and 
substantially to the English law doctrine that 


the executor properly accounting is only lia- | 


ble to the extent of the assets received by 
him. 

BENEFICIAIRE. In Frenchlaw. The 
person in whose favor a promissory note or 
bill of exchange is payable; or any person in 
whose favor a coutract of any description is 
executed. Arg. Fr. Mere. Law, 547. 


127 


3 Steph. Comm. 77, note t; 4 | 


BENEFICIUM 


BENEFICIAL. Tending to the benefit 
ofa person; yielding a profit, advantage, or 
benefit; enjoying or entitled to a benefit or 
profit. This term is applied both to estates 
(as a “beneficial interest”) and to persons, 
(as “the beneficial owner.”) 


BENEFICIAL ENJOYMENT. The 
enjoyment which a man has of an estate in 
his own right and for his own benefit, and 
not as trustes for another. 11 H. L. Cas. 
271. 


BENEFICIAL INTEREST. Profit, 
benefit, or advantage resulting from a con- 
tract, or the ownership of an estate as dis- 
tinct from the legal ownership or control. 


BENEFICIAL POWGR. In New York 
law and practice. A power which has for 
its object the donee of the power, and which 
is to be executed solely for his benefit; as dis- 
tinguished from a trust power, which has 
for its object a person other than the donee, 
and is to be executed solely for the benefit of 
such person. 73 N. Y. 234; Rey. St. N. ¥. 


| § 79. 


BENEFICIARY. A term suggested by 
Judge Story as a substitute for cesiud que 
trust, and adopted to sume extent, 1 Story, 
Eq. Jur. § 321. 

Ie that is in possession of a benefice; also 
a cestui que trust, or person having the en- 
joyment of property, of which a trustee, ex- 
ecutor, ete., has the legal possession. 


BENEFICIO PRIMO [ECCLESIAS- 
TICO HABENDO.] InEnglishlaw. An 
ancient writ, which was addressed by the 
king to the lord chancellor, to bestow the 
benelice that sliould jirst fall in the royal 
gift, above or under a Specified value, upon a 
person named therein. Reg. Orig. 807. 


BENEFICIUM. In early feudal law. 
A. benefice; a permanent stipendiary estate; 
the same with what was afterwards called a 
“fief,” “feud,” or “fee.” 3 Steph. Comm. 
77, note i; Spelman. 

In the civil law. A benefit or favor; 
any particular privilege. Dig. 1, 4, 3; Cod. 
7, 71; Mackeld. Rom. Law, § 196. 

A general term applied to ecclesiastical 
livings. 4 Bl. Comm. 107; Cowell. 


BENEYFICIUM A®BSTINENDI. In 
Roman law, The power ofan heir to abstain 
from accepting the inheritance. Sandars, 
Just. Inst. (Sth Ed.) 214. 


BENEFICIUM CEDENDARUM AC- 
TIONUM. In Roman law. The privilege 


BENEFICIUM CLERICALE 


by which a surety could, before paying the 
ereditor, compel him to make over to him the 
actions which belonged to the stipulator, so 
as to avail himself of them. Sandars, Just. 
Inst. (Sth Ed.) 382, 351. 


BENEFICIUM CLERICALE. Benefit 
of clergy, which see. 


BHENEFICIUM COMPETENTLAE. In 
Scotch law. The privilege of competency. 
A privilege which the grantor of agratuitous 
obligation was entitled to, by which he might 
retain sufficient for his subsistence, if, before 
fulfilling the obligation, he was reduced to 
indigence. Bell. 

In the civil law. The right which an 
Insolvent debtor had, among the Romans, on 
making cession of his property for the benefit 
of his creditors, to retain what was required 
for him to live honestly according to his con- 
dition. 7 Toullier, n. 258. 


BENEFICIUM DIVISIONIS. In civil 
and Scotch law. The privilege of one of sev- 
eral co-sureties (cautioners) to insist upon 
paying only his pre rate share of the debt. 
Bell. 


BENEFICIUM INVENTARIL. 
BENEFIT oF INVENTORY. 


See 


Beneficium non datum nisi propter 
officium. Hob. 148. A remuneration not 
given, unless on account of aduty performed. 


BENEFICIUM ORDINIS. Inciviland 
Scotch law. The privilege of order. The 
privilege of a surety to require that the ered- 
itor should first proceed against the principal 
and exhaust his remedy against him, before 
resorting to the surety. Bell. 


BENEFICIUM SEPARATIONIS. In 
the civil law, ‘The right to have the goods 
of an heir separated from those of the testator 
Jn favor of creditors, 


BENEFIT BUILDING SOCIETY. 
The original name for what is now more 
commonly called a “building socicty,” (q. v.) 


BENEFIT OF CHSSION. In the civil 
law. The release of a debtor from future 
imprisonment for his debts, which the law 
operates in his favor upon the surrender of 
his properly for the benefit of his creditors. 
Poth, Proc. Civil, pt. 5, ¢. 2, § 1. 


BENEFIT OF CLERGY. In ita orig- 
inal sense, the phrase denoted the exemption 
which was aceorded to clergymen from the 
jurisdiction of the secular courts, or from ar- 
rest ar attachment on criminal process igsu- 


128 


ne 


BENEFIT SOCIETIES 


ing from those courts in certain particular 
eases. Afterwards, it meant a privilege 


accorded to such persons as were clerks, o1 
who could read. 

This privilege of exemption from capital punish 
ment Was auciently allowed to clergymen only, 
but afterwards to all who wore connected with the 
church, even to its most subordinate officers, and 
ata still later time to all persons who could read, 
(then called “clerks,”) whether ecclesiastics or 
laymen. It does not appear to have been extended 
to cases of high treason, nor did it apply to mere 
misdemeanors. The privilege was claimed alter 
the person’s conviction, by a species of motion in 
arrest of judgment, technieally called “ praying his 
clergy.” Asa means of testing his clerical char 
acter, he was given a psalm to read, (usually, or 
always, the fifty-first,) and, upon his reading it 
correctly, he was turned over to the ecclesiastical 
courts, to be tried by the bishop ora jury of twelve 
clerks. These heard him on oath, with his wit 
nesses and compurgators, who attested their be 
lief in his innocence. This privilege operate 
greatly to mitigate the extreme rigor of the crim 
inal laws, but was found to involve such STOSS 
abuses that parliament began to enact that cer 
crimes should be felonies “without benefit of 
clergy,” and finally, by St. 7 Geo. IV. c. 28, § 6, it 
was altogether abolished. The act of congress of 
April 30, 1790, § 30, provided that there should he 
no benefit of clergy for any capital crime against 
the United States, and, if this privilege formed 
@ part of the common law of the several states 
before the Revolution, it no longer exists. 


BENEFIT OF DISCUSSION. In the 
civil law. ‘The right which a surety has to 
cause the property of the principal debtor to 
be applied in satisfaction of the obligation in 
the first instauce. Civil Code La. arts, 3014- 
3020. 

In Scotch law. That whereby the anteced- 
ent heir, such as the heir of line in a pursuit 
against the heir of tailzie, ete., must be first” 
pursued to fulfill the defunct’s deeds and pay 
his debts. This benelit is likewise compe 
tent in many cases to cautioners. 


BENEFIT OF DIVISION. 
beneficium divisionis, (gq. 0.) 


BENEFIT OF INVENTORY, Inthe 
ceivillaw. The privilege which the heir ol« 
tains of being liable for the charges and 
debts of the suecession, only to the value of 
the effects of the succession, by causing au 
inventory of these effects wilhin the tine 
and manner prescribed by law. Civil Code 
La. art. 1032. 


BENEFIT SOCIETIES. Under this 
and several similar names, in various states, 
corporations exist to receive periodical pay- 
ments from members, and hold them as a — 
fund to be loaned or given to members need- 


Same ag 


BENERTH 


untary relief. Such are beneficial ao- 
of Maryland, fund associations of Mis- 
loan and fund associations of Massa- 
tts, mechanics’ associations -of Michi- 
, protection societies of New Jersey. 
endly societies in Great Britain are a still 
moreexiensive and important species belong- 
ing to this class. Abbott. 


BENGERTH. A feudal service rendered 
by the tenant to his lord with plow and cart. 
Cowell, 


BENEVOLENCE. The doing a kind 
or helpful action towards another, under no 
obligation except an ethical one. 

Is no doubt distinguishable from the words 
“liberality” and “charity;” for, although many 
charitable institutions are very properly called 
“benevolent, ” it is impossible to say that every ob- 
ject of a man’s benevolence is also an object of his 
charity. 3 Mer. 17. 

In public law. Nominally a voluntary 
gratuity given by subjects to their king, but 
in reality a tax or forced loan. 


BENEVOLENT. This word is certain- 
ly more indefinite, and of far wider range, 
than “charitable” or “religious;” it would 
Include all gifts prompted by good-will or 
kind feeling towards the recipient, whether 
an object of charityornot. ‘he natural and 
usual meaning of the word would so extend 


ft. It has no legal meaning separate from | 


its usual meaning. “Charitable” has ae- 
quired a settled limited meaning in law, 
which confines it within known limits. But 
in all the decisions in England on the sub- 
ject it has been held that a devise or beqnest 
for benevolent objects, or in trust to give to 
such objects, is too indetinite, and therefore 


void. 19N. J. Eq. 307, 313; 20 N. J. Eg. | 


489. 

This word, ag applied to objects or pur- 
poses, may refer to those which are in their 
nature charitable, and may also havea broad- 
er meaning and include objects and purposes 
not charitable in the legal sense of that word. 
Acts of kindness, friendship, forethought, or 
good-will might properly be described as 
benevolent. It has therefore been held that 
gifts to trustees to be applied for “benevo- 
lent purposes” at their discretion, or to such 
“benevolent purposes” as they could agree 
upon, do not create a public charity. But 
where the word is used in connection with 
other words explanatory of its meaning, and 
indicating the intent of the donor to limit it 
to purposes strictly charitable, it has been 
held to be synonymous with, or equivalent 
to, “charitable.” 132 Mass. 418. See, also, 

AM. DICT.LAW—9 


129 


BERCARIUS 


111 Mass. 268; 31 N. J. Eq. 695; 23 Minn. 
92. 

BENEVOLENT SOCIETIES. In En- 
glish law. Societies established and regis- 
tered under the friendly societies act, 1875, 
for any charitable or benevolent purposes. 


Benigne faciends sunt interpreta- 
| tiones chartarum, ut res magis valeat 
quam pereat; et quelibet concessio for- 
tissime contra donatorem interpretanda C 
est. Liberal interpretations are to be made 
of deeds, so that the purpose may rather 
stand than fall; and every grant is to be 
taken most strongly against the grantor. 4 
Mass. 134; 1 Sandf. Ch. 258, 268. 


Benigne faciendss sunt interpreta- 
tiones, propter simplicitatem laicorum, 
ut res magis valeat quam pereat. Con- 
structions [of written instruments] are to be E 
made liberally, on account of the simplicity 
of the laity, [or common people,] in order 
that the thing [or subject-matter] may rather 
have effect than perish, [or become void.] 
Co. Litt. 362; Broom, Max. 540. F 


Benignior sententia in verbis gener- 
alibus seu dubiis, est preferenda, 4 
Coke, 15. The more favorable construction 
is to be placed on general or doubtful ex- G 
pressions. 


Benignius leges interpretands sunt 
quo voluntas earum conservetur. Laws 
| are to be more liberally interpreted, in order H 
that their intent may be preserved. Dig. 1, 
3, 18. 


BEQUEATH. Togivepersonal property 
by will to anvther. 13 Barb. 106. The word | 
may be construed devise, so as to pass real ese 
Wig. Wills, 11. 


BEQUEST. A gift by will of personal 
property; a legacy. 

A specifle bequest is one whereby the tes- J 
tator gives to thelegatee all his property of a 
certain class or kind; as all his pure person- 

“alty. ; 

A residuary bequest is a gift of all the re- K 
mainder of the testitor’s personal estate, aft- 
er payment of debts and legacies, ete. 

An execuiory bequest is the bequest of a 
future, deferred, or contingent interest in 
personalty. L 


BERCARIA. Inold English law, a sheep- 
fold; also a place where the bark of trees 
was laid to tan. 


BERCARIUS, OR BERCATOR. A Mi 
shepherd. 


| tate. 


BEREWICHA 


BEREWICHA, or BEREWICA. In 
old English law. A term used in Domes- 
day for a village or hamlet belonging to some 
town or manor. 


BERGHMAYSTER. An officer having 
charge of a mine. A bailiff or chief officer 
among the Derbyshire miners, who, in addi- 
tion to his other duties, executes the office of 
coroner among them. Blount; Cowell. 


BERGHMOTH, or BERGHMOTE. 
The ancient name of the court now called 
“barmote,” (gq. v.) 


BERNET. InSaxonlaw. Burning; the 
erime of house burning, now called “arson.” 
Cowell; Blount. 


BERRA. In old law. 
heath. Cowell. 


A plain; open 


BERRY, or BURY. A villa or seat of 
habitation of a nobleman; a dwelling or man- 
sion house; a sanctuary. 


BERTON. A large farm; the barn-yard 
of a large farm. 


BES. Lat. In the Roman law. A di- 
vision of the @s, or pound, consisting of 


eight wnete. or duoiecimal parts, and 
amounting to two-thirds of the as. 2 Bl. 
Comm. 462, note m. 

Two-thirds of an inheritance. Inst. 2, 
14, 5, 

Bight per cent. interest, 2 Bil. Comm: 
ubi supra, 


BESAILE, BESAYLE. The great- 
yrandfather, proarus. 1 Bl. Comm. 186. 


BESAYEL, Besaiel, Besaylo. In old 
Buglish law. A writ which lay where a 
great-grandfather died seised of lands and 
cenements in fee-simple, and on the day of 
iis death a stranger abated, or entered and 
kept out the heir. Reg. Orig. 226; Fitzh. 
Nat. Brev. 221 D; 3 Bl. Comm. 186. 


BEST EVIDENCE. Primary evidence, 
as distinguished from secondary; original, 
a3 distinguished from substitutionary; the 
best and highest evidence of which the nat- 
ure of the case is susceptible. A written 


tnstrument is itself always regarded as the | 


primary or best possible evidence of its ex- 
istence and contents; a copy, or the recollec- 
tion of a witness, would be secondary evi- 
jence. ; 


BESTIALITY. Bestiality is the carnal 
snowledge and connection against the order 


180 


BETWEEN 


of nature by man or woman in any manner 
with a beast. Code Ga, 1882, § 4354. 

Wo take it that there is a differeuce in significa- 
tion between the terms “bestiality,” and the 
“crime against nature.” Bestiality is a connec 
tion between a human being and a brute of the op 
posite sex. Sodomy isa connection between two 
human beings of the same sex,—the male,—named 
from the prevalence of the sinin Sodom. Both 
may be embraced by the term “crime againat nat 
ure,” as felony embraces murder, larceny, etc., 
though we think that term is more generally 
used in reference to sodomy. Buggery seems to 
inelude both sodomy and bestiality. 10 Ind. 356. 


BET. Bet and wager are synonymous 
terms, and are applied both to the contract 
of betting or wagering and to the thing or 
sum bet or wagered. For example, one belts 
or wagers, or lays a bet or wager of so much, 
upon a certain result. But these terms can. 
not properly be applied to the act to be done, 
or event to happen, upon which the bet or 
wager is laid. Bets or wagers may be laid 
upon acts to be done, events to happen, or 
facts existing or to exist. The bets or wa- 
gers may be illegal, and the acts, events, or 
facts upon whieh they are laid may not be. 
Bets or wagers may be laid upon games, and 
things that are not games. Lverything up- 
on which a bet or wager may be laid is not a 
game. 11 Ind. 16. See, alse, 81 N. Y. 539. 


BETROTHMENT. Mutual promise of 
marriage; the plighting of troth; a mutual 
promise or contract between a man and 
woman competent to make it, to marry at a 
future time. 


BETTER EQUITY. The right which, 
in a court of equity, a second incumbrancer 
has who has taken securities against subse- 
quent dealings to his prejudice, which a prior 
insumbrancer neglected to take although he 
had an opportunity. I Ch. Prec. 470, n.; 4 
Rawle, 144. See 3 Bouv. Inst. n. 2462. 


BETTERMENTS. Improvements put 
upon an estate which enhance its value more 
than mere repairs. The term is also applied 
to denote the additional value which an es- 
tate acquires in consequence of some publie 
improvement, as laying out or widening a 
street, etc. 


BETWEEN. As ameasureor indication 
of distance, this word has the effect of exclud- 
ing the two termini. 1 Mass. 93; 12 Me, 
366. Compare 31 N. J. Law, 212. 

lf an act is to be done “between” two cer- 
tain days, it must be parformed before the 
commencement of the latter day. In com: 


| puting the time in such a ease, both the days 


BETWEEN 181 BIGA 


named are to be excluded. 14 Ill. 332; 16 
Barb, 352, 

In case of a devise to A. and B. “between 
them,” these wards create a tenancy in com- 
mon. 2 Mer. 70. 


BID. An offer by anintending purchaser 
to pay a designated price for property which 
is about to be sold at auction. 


J 
BIDAL, or BIDALL. An invitation of 
friends to drink ale at the house of some poor 
BEVERAGE. This term is properly used | 
to distinguish a sale of liquors to be drunk 
for the pleasure of drinking, from liquors to 
be drunk in obedience toa physician’s advice. 
142 Mass. 469, 8 N. E. Rep. 327. 


tnan, Who hopes thereby to be relieved by 
charitable contribution. It is something like 
“house-warming,” z. e., a visit of friends to 
a person beginning to set up house-keeping. 
Wharton. 


BIDDER. One who offers to pay a speci- 
fied price tor an article offered for sale at a 
public auction, 11 Ill. 254. 


BEWARED. O. Eng. Expended. Be- 
fore the Britons and Saxons had introduced 
the general use of money, they traded chiefly 


by exchange of wares. Wharten. BIDDINGS. Offers ofa designated price 
1.4 for goods or other property put up for sale at 

BEYOND SEA. Beyond the limits of | gyotion, 

the kingdom of Great Britain and Ireland; 

outside the United states; out of the state, BIELBRIEF. Germ. In European 
Beyond sea, beyond the four seas, beyond the marilime law. A document furnished by the 

seas, and out of the realm, are synonymous. Prior | builder ofa vessel, containing a register of her 

to the union of the two crowns of England and | admeasurement, particularizing the length, 

Scotland, on the accession of Jumes L., the phrases | breadth, and dimensions of every part of the 

“beyond the four seas,”“beyond the seas,” and hi It s i at tains the fer 

“out of the realm,” signified out of the limits of AnIDs ROMEEHOSS B80 CONE itera ae 

the realm of IEngland. 1 Har. & J. 350. of agreement between the party for whose ac- 
In Pennsylvania, it has been construed to mean | count the ship is built, and the ship-builder. 

} 


“without the limits of the United States,” which | [Tf has been termed in English the “grand 
approaches the literal signification. 2 Dall. 217; 1 = 


j © ed Gf Pl * ‘ iy 5 ¥ 
Youtes, 329; 6 Pet. 291, 300. The same construc- bill of sale,” in French, contrat de con. 
tion has been given to it in Missouri. 20 Mo. 530, | Struction ow de la vente d'un vaisseau,” and 
Sce Ang. Lim. §§ 200, 201. corresponds in a great degree with the En- 
oo Se ee a glish, French, and American “register,” (g. 
clause of a statute of limitations, is equivalent to | | . i ; é 
without the limits of the state where the statute Der) bemg 40 equally essential document to 
is enacted; and the party who is without those the lawful ownership of vessels. Jac, Sea 
limits is entitled to the benefit of the exception, | Laws, 12, 18, and note. In the Danish law, 


8 Cranch, 174; 3 Wheat. 541; 11 Wheat. 361; 1 Me- | it is used to denote the contract of bottomry. 
Lean, 146; 2 McCord, 331; 8 Ark. 438; 26 Ga. 182; 


18 N. H. 79. BIGNWIALLY. This term, in a statute, 
signifies, not duration of time, but a period 
“prejudice.” By the use of this word in a es ae pits eke. ai? os 
statute declaring disqualification of jurors, two years. GR C405 DN ee 


the legislature intended to describe another BINS. In English law. Property of 
and somewhat different ground of disqualifi- | gyery description, except estates of freehold 
cation. A man cannot be prejudiced against | and inheritance. Sugd. Vend. 495; €o. 
another without being biased against him; | Ligt, 1195. 

Seer ney be insed” withoub being: prejn- In French law. This term includes all 

M ; 7 a, < j . j on 

Gieed. Bias is “a ee Ep PoW- ' kinds of property, real and personal. Biens 
er, which sways the judgment; the inclina- | ay givided into biens meubles, movable prop- 
tion of the mind towards a particular object.” | erty; and diens immeubles, immovable prop- 
suis not'to be supposed that the legislature erty. The distinction between movable and 


oe ae i. voit = aa maptget mind | immovable property is reeognized by the con- 
absolutely free from all inclination to one side | tinental jurists, and gives rise, in the civil as 


or the other. The statute meaus that, al- well as in the common law, to many impor- 
eee 2 juror me Tipe RAPA Od Be ie CATER | tant distinctions as to rights and remedies. 
or against the prisoner, before the evidence , Story, Confl. Laws, § 18, note 1. 

is heard on the trial, yet, if he is under such 
an influence as so sways his mind to the one BIGA, or BIGATA. A cart or chariot 
side or the other ag te prevent his deciding | drawn with two horses, coupled side to side; 
the cuuse according to the evidence, he is in- | but it is said to be properly a cart with two 
competent. 12 Ga. 444. wheels, sometimes drawn by one horse; and 


BIAS. This term is not synonymous with 


BIGAMUS 


in the ancient records it is used for any cart, 
wain, or wagon. Jacob. 


BIGAMUS. In the civil law. A man 
who was twice married; one who at differ- 
ent times and successively hus married two 
wives. 4 Inst. 88. One who has two wives 
living. One who marries a widow. 


Bigamus seu trigamus, etc., est qui di- 
yersis temporibus et successive duas seu 
tres uxores habuit. 4 Inst.68. <A biga- 
mus or trigumus, etc., is one who at differ- 
ent times and successively has married two 
ov three wives. 


BIGAMY. The criminal offense of will- 
fully and knowingly contracting a second 
marriage (or going through the form of a 
second marriage) while the first marriage, to 
the knowledge of the offender, is still sub- 
sisting and undissolved. . 

The state of a man who has two wives, or 
of a woman who has two husbands, living 
at the same time. 

The olfense of having a plurality of wives 
at the same time is commonly denominated 
“polygamy;” but the name “bigamy” has 
been more frequently given to it in legal 
proceedings. 1 Russ. Crimes, 185. 

The use of the word “bigamy” to describe this 
offense is well established by long usage, although 
often criticised as a corruption of the true mean- 
ing of the word. Polygamy is suggested as the 
correct term, instead of bigamy, to designate tho 
offense of having a plurality of wives or husbands 
at the same time, and has been adopted for that 
purpose in the Massachusetts statutes. Bui as 
the substance of the offense is marrying a second 
time, while having a lawful husband or wife liv- 
ing, without regard to the number of marriages 
that may bave taken place, bigamy seems noi an 
inappropriateterm. The objection to its use urged 
by Blackstone (4 Bl. Comm. 163) seems to be found- 
ed not so much upon considerations of the etymol- 
ogy ofthe word as upon the propriety of distin 
guishing the ecclesiastical offense termed “biga- 
my” in the canon Jaw, and which is defined below, 
from the offense kuown as “bigamy” in the modern 
criminal law. ‘The same distinction is carefully 
made by Lord Coke, (4 Inst. 88.) But, the ecclesi- 
astical offense being now obsolete, this reason for 
substituting polygamy to denote the crime here 
defined ceases to have weight. Abbott. 

In the canon law, the term denoted the 
offense committed by an ecclesiastic who 
mnarried two wives successively. It might 
be comuuitted either by marrying a second 
wife after the death of a first or by marrying 
a widow. 


BIGOT. Anobstinate person, or one that 
ia wedded to an opinion, in matters of re- 
ligion, etc. 


132 


BILL 


BILAGINES. By-laws of towns; mu- 
nicipal laws. 


BILAW. A term used in Louisiana, de- 
tived from the French. <A book in which 
bankers, merchants, and traders write a 
statement of all they owe and all that is due 
them; a balance-sheet. See 3 Mart. (N. 8.) 
446. 


BILANCIIS DEFERENDIS. In En- 
glish law. An obsolete writ addressed toa 
corporation for the carrying of weights to 
such a haven, there to weigh the wool an- 


ciently licensed for transportation. Reg. 
Orig. 270. 
BILATERAL CONTRACT. A term, 


used originally in the civil law, but now 
generally adopted, denoting a contract in 
which both the contracting parties are bound 
to fulfill obligations reciprocally towards each 
other; as a contract of sale, where one be. 
comes bound to deliver the thing sold, and 
the other tu pay the price of it. 

“Every convention properly so called consists of 
& promise or mutual promises proffered and ac- 
cepted. Where one only of the agreeing parties 
gives a promise, the convention is said to be ‘ uni- 
lateral.’ Wherever mutual promises are proffered 
and accepted, there are, in strictness, two or more 
conventions. But where the performauce of either 
of the promises is made to depend on the perform- 
ance of the other, the several conventions are com- 
monly deemed one convention, and the convention 
is then said to be ‘bilateral.’” Aust. Jur. § 303. 


BILGED. In admiralty law and marine 
insurance. That state or condition of a ves- 
sel in which water is freely admitted through 
holes and breaches made in the planks of the 
bottom, occasioned by injuries, whether the 
ship’s timbers are broken or not. 3 Mass. 
39. 


BILINE. A word used by Britton in the 
sense of “collateral.” Hn line biline, in the 
collateral line. Britt. c. 119. 


BILINGUIS, Of a double language or 
tongue; that can speak two languages. A. 
term applied in the old Looks to a jury com- 
posed partly of Englishmen and partly of for- 
eigners, which, by the English law, an alien 
party toa suit is, in certain cases, entitled 
to; more commonly called a “jury de medi- 
etate lingue.” 3 Bl, Comm. 360; 4 Steph. 
Comm. 422, 


BIL? A formal declaration, complaint, 
or statement of particular things in writing. 
As a legal term, this word has many mean- 
ings and applications, the more important of 
which are enumerated below. 


BILL 


1. A forma! written statement of com- 
plaint to a courf of justice. 

In the aneient practice of the court of 
king’s bench, the usual and orderly method 
of beginning an action was by a 622, or orig- 
inal bill, orplaint. This was a written state- 
ment of the plaintiff's cause of action, like a 
declaration or complaint, and always alleged 
a trespass as the ground of it, in order to 
give the court jurisdiction. 3 Bl. Comm, 43. 

2. A formal written declaration by a court 
to its officers, in the nature of process; as 
the old bii2 of Middlesex.. 

5. A record or certified written account of 
the proceedings in an action, or a portion of 
the same; as @ bill of eaceptions. 


4. In equity practice. <A formal writ- 
ten complaint, in the nature of a petition, 


addressed by a suitor in chancery to the | 


chanevllor or to a cout of equity or a court 
having equitable jurisdiction, showing the 
names of the parties, stating the facts which 
make up the case and the complainant’s alle- 
gations, averring that the acts disclosed are 
contrary to equity, and praying for process 
and for specific relief, or for such relief as 
the circumstances demand. 

Bills are said to be original, not original, or in 
the nature of original bills. They are original 
when the circumstances constituting the case are 
not already before the court, and relief is demanded, 
or the bill is filed fer a subsidiary purpose. 

6. In legislation and constitutional law, the 
word means a draft ot an act of the legislature 
before it becomes a law; a preposed or pro- 
jected law. A draft of an act presented to 
the legislature. but not enacted. An act is 
the appropriate term for it, after it has been 
xcted on by, and passed by, the legislature. 
26 Pa. St. 450. 

Also a special act passed by a legislative 
body in the exercise of « guast judicial power. 
Thus, bills of attainder, bills of pains and 
peniulties, are spoken of. 

In England, “bill” also signifies the draft of a 
patent for a charter, commission, dignity, oflice, 
w appointment; such a bill is drawn up in the at- 
torney general’s patent bill office, is submitted by 
Q secretary of state for her majesty’s signature, 
when it is called the “queen’s bill;” it is counter- 
signed by the secretary of state, and sealed by the 
privy seal, and then the patent is prepared and 
sealed. Sweet. 

6. A solemn and formal legislative declara- 
tion of popular rights and liberties, promul- 
giuted on certain extraordinary oceasions; as 
the famous Bill of Rights in English history. 

7. As a contract. An obligation;a deed, 


whereby the obligor acknowledges himself to 
ewe unto the obligee a certain sum of money 


133 


BILL IN NATURE, ETC. 


or some other thing, in which, besides the 
names of the parties, are to be considered the 
sum or thing due, tha time, place, and man- 
ner of payment or delivery thereof. It may 
be indented or poll, and with or without 4 
penalty. Weert, Symb. §§ 100, 101. 

8. A written statement of the terms of 4 
contract, or specification of the items of a de- 
mand, or counter-demand. 

Also the creditor’s written statement of 
his claim, specifying the items. C 

9. By the English usage, it is applied to 
the statement of the charges and disburse- 
ments of an attorney or solicitor incurred in 
the conduct of his client's business, and which 
might be taxed upon application, even though 
not incurred in any suit. Thus, conveyanc- 
ing costs might be taxed. Wharton. 


BILL-BOOK, In mereantile law. <A 
book in which an account of bills of exchange E 
and promissory notes, whether payable or re- 
ceivable, is stated. 


BILL CHAMBER. In Scotch law. A 
department of the court of session in which 
petitions for suspension, interdict, etc., are 
entertained. It is equivalent to sittings in 
chambers in the English and American prac- 
tice. Paters. Comp. 


BILL FOR A NEW TRIAL. In eq- 
uity practice. <A bill in equity in which the 
specific relief asked is an injunction against 
the execution of a judgment rendered at law 
and a new trial in the action, on account of 
some fact which would render it inequitable 
to enforce the judgment, but which was not 
available to the party on the trial at law, or 
which he was prevented from presenting by | 
fraud or accident, without concurrent fraud 
or negligence on his own part. 


BILL FOR FORECLOSURE, In eq- 
uity practice. One which is filed by a mort- 
gagee against the mortgagor, for the purpose J 
of having the estate sold, thereby to obtain 
the sum mortgaged on the premises, with in- 
terest and costs. 1 Madd. Ch. Pr, 528. 


BILL-HEAD. A printed form on which K 
merchants and traders make ont their bills 
and render accounts to their customers. .- 


BILL IN CHANCERY. See Bixu, 4. 
BILL IN EQUITY. See Briuz, 4. 


BILL IN NATURE OF A BILL OF 
REVIEW. A bill in equity, to obtain a 
re-examination and reversal of a deeree, filed 
by one who was not a party to the original M 
suit, nor bound by the decree. 


BILL IN NATURE, ETC. 


BILL IN NATURE OF A BILL OF 
REVIVOR. Where, on the abatement of a 
snit, there is such a transmission of the in- 
terest of the incapacitated party that the title 
toit, as well as the person entitled, may be the 
subject of litigation in a court of chancery, the 
sultcannot be continued bya mere bill of re- 
yivor, but an original bill upon which the title 
may be litigated must be filed. This is calleda 
“pill in the nature of a bill of revivor.” It 
is founded on privity of estate or title by the 
act of the party. And the nature and opera- 


tion of the whole act by which the privity is | 


created is open to controversy. Story, Eq. 
Pl. §§ 378-380; 2 Amer. & Eng. Enc. Law, 
avi. 


BILL IN NATURE OF A SUPPLE- 
MENTAL BILL. 
parties, with new interests, arising from 
events happening since the suit was com- 
menced, are brought before the court; where- 
in it differs from a supplemental bill, which is 
properly applicable to those cases only where 
the same parties or the same interests remain 
before the court. Story, Eq. Pl. (5th Ed.) 
§ 345 et seq. 


BILL OBLIGATORY. A bord abso- 
lute for the payment of money. It is called 
also a “single bill,” and differs from a prom- 
issory note only in having aseal. 2 Serg. & 
R. 115. 


BILL OF ADVENTURE. A written 
certificate by a merchant or the master or 
owner of a ship, to the effect that the proper- 
ty and risk in goods shipped on the vessel in 
his own name belong to another person, to 


A bill filed when new | 


134 


whom he is accountable for the proceeds | 


alone. 


BILE OF ADVOCATION, In Scotch 
practice. <A bill by which the judgment of 
un inferior court is appealed from, or brought 
under review of a superior. Bell. 


BILL OF APPEAL. An ancient, but 


now abolished, method of criminal prosecu- 


tion. See BATTEL. 


BILL OF ATTAINDER. A legislative 
act, directed against a designated person, 
pronouncing him guilty of an alleged crime, 
(usnally treason, ) without trial or convietion 
uccording to the recognized rules of proced- 
ure, and passing sentence of death and at- 
tainder upon him. 

“Bills of attainder,” as they are technically 
called, are such specie! acts of the legislature as 
inflict capital puuishments upon persons supposed 
io be guilty of high otfensos, such as treasun snd 


BILL OF ENTRY 


feiony, without any conviction In the ordinary 
course of judicial proceedings. If an act \nflietaa 
milder degrees of punishment than death, it is 
celled a “bili of pains and penalties,” but both ara 
included in the prohibition in the Federal consti- 
tution. Story, Const, § 1344. 


BILL OF CERTIORARI. A bill, the 
object of which is to remove a suit in equity 
from some inferior court to the court of 
chancery, ox some other superior court of 
equity, on account of some alleged incumpe- 
tency of the inferior court, or some injustica 
in its proceedings. Story, Eq. Pi. (th Ei.) 
§ 298. 

BILL OF CONFORMITY. In equity 
practice. One filed by an executor or admin- 
istrator, who finds the affairs of the deceased 
s0 much invelyed that he cannot safely ad- 
minister the estate except under the direction 
of a court of chancery. This bill is filed 
against the creditors, generally, for ile pur- 
pose of having all their claims adjusted, and 
procuring a final decree settling the order of 
payment of the assets. 1 Story, Eq. Jur. 
§ 440, 


BILL OF COSTS. A certified, itemized 
statement of the amount of costs in an action 
or suit. 


BILL OF CREDIT. In constituticnal 
law. A bill or promissory note issued by 
the government of a state or nation, upon its 
faith and credit, designed to circulate in the 
community ag money, and redeemable at a 
future day. 

In mercantile law. A license or author- 
ity given in writing from one person to an- 
other, very common aniong merchants, bank- 
ers, and those who travel, empowering a 
person to receive or take up money of their 
correspondents abroad. 


BILL OF DEBT. An ancient term in- 
eluding promissory notes and bonds for the 
payment of money. Com, Dig. “ Merchant,” 
F. 2. 


BILL OF DISCOVERY. A bill in 
equity filed to obtain a discovery of facta 
resting in the knowledge of the defendant, 
or of deeds or writings, or other things in 
his custody or power. Story, Eq. Pl. (5th 
Ed.) § 311. 


BILL OF ENTRY. An account of the 
goods entered at the custom house, both in- 
coming and outgoing. It must state the © 
name of the merchant exporting or import- 
ing, the quantity and species of merchandise, 
and whither transported, and whence. 


BILL OF EXCEPTIONS 135 LILL OF INTERPLEADER 
BILL OF EXCEPTIONS, A formal} or that one actually prevailed, it is called a 


statement in writing of the objections or ex- 
ceptions taken by a party during the trial of 
acause to the decisions, rulings, or instruc- 
tions of the trial judge, stating the objection, 
with the facts and circumstances on which 
it is founded, and, in order to attest its aceu- 
racy, signed and sealed by the judge; the 
object being to put the controverted rulings 
or decisions upon the record for the informa- 
tion of the appellate court. 2 Dak. 470, 11 
N. W. Rep. 497; Pow. App. Proc. 211. 


BILL OF EXCHANGE. A written 
order from A. to B., directing Is. to pay to C.a 
certain sum of money therein named. Byles, 
Bills, 1. 

An open (that is, unsealed) letter addressed 
by one person to another directing him, in 
effect, to pay, absolutely and at all events, a 
certain sum of money therein named, toa 
third person, or to any other to whom that 
third person may order it to be paid, or it 
may be payable to bearer or to the drawer 
himself. 1 Daniel, Neg. Inst, 27. 

A bill of exchange is an instrument, nego- 
tiable in form, by which one, who is called 
the “drawer,” requests another, called the 
“drawee,” to pay a specified sum of money. 
Civil Code Cal. § 3171. 

A bill of exchange is an order by one per- 
son, called the “drawer” or “maker,” to an- 
other, called the “drawee” or “acceptor,” to 
pay money to another, (who may be the 
drawer himself,) called the “payee.” or his 
order, or to the bearer. If the payee, or a 
bearer, transfers the bill by indorsement, he 
then becomes the “indorser.” Ifthe drawer 
or drawee resides out of this state, it is 
then called a “foreign bill of exchange.” 
Code Ga. 1882, § 2773. 


BILL OF GROSS ADVENTURE. In 
French maritime law. Any written instru- 
ment which contains a contract of bottomry, 
respondentia, or any other kind of maritime 
joan, There is no corresponding English 
term. Hall, Marit. Loans, 182, n. 


BILL OF HEALTH. An official certifi- 
cate, given by the authorities of a port from 
which a vessel clears, to the master of the 
ship, showing the state of the port, as re- 
spects the public health, at the time of sail- 
ing, and exhibited to the authorities of the 
port which the vessel next makes, in token 
that she does not bring disease, If the bill 
alleges that no contagious or infectious dis- 
euse existed, itis called a “clean” bill; if it 
admits that one was suspected or anticipated, 


Re 


“touched” or a “foul” bill. 


In Scotch law. An application of a per- 
son in enstody to be discharged on account 
of ill health. Where the health of a prisoner 
requires it, he may be indulged, under prop- 
er regulations, with snch a degree of liberty 
as may be necessary to restore him. 2 Bell, 
Comm. (5th Ed.) 549; Paters. Comp. § 1129. 


BILL OF INDEMNITY. In English 
law. An act of parliament, passed every 
session until 1869, but discontinued in and 
after that year, as having been rendered un- 
necessary by the passing of the promissory 
oaths act, 1868, for the relief of those who 
have unwittingly or unavoidably neglected 
to take the necessary oaths, ete., required for 
the purpose of qualifying them fo hold their 
respective offices. Wharton, 


BILL OF INDICTMENT, A formal 
written document accusing a person or per- 
sons named of having couimitted a felony or 
misdemeanor, lawfully laid before a grand 
jury for their action upon it. If the grand 
jury decide that a trial ought to be bad, they 
indorse on it “atrue bill;” if otherwise, “not 
a true bill” or “not found.” 


BILL OF INFORMATION, Inchan- 
cery practice. Where a suit is instituted on 
behalf of the crown or government, or of 
those of whom it has the custody by virtue 
of its prerogative, or whose rights are under 
its particular protection, the matter of com- 
plaint is offered to the court by way of in- 
formation by the attorney or solicitor gen- 
eral, instead of by petition. Where a suit 
immediately concerns the crown or govern- 
ment alone, the proceeding is purely by way 
of information, but, where it does not do so 
immediately, a relator is appointed, who is 
answerable for costs, ete., and, if he is in- 
terested in the maiter in connection with the 
crown or government, the proceeding is by 
information and bill. Informations differ 
from bills in little more than nameand form, 
and the same rules are substantially applica- 
ble to both. See Story, Eq. Pl. 5; 1 Daniell, 
Ch, Pr. 2, 8, 238; 3 Bl. Comm. 261. 


BILL OF INTERPLEADHER. The name 


of a bill in equity to obtain a settlement of a 


question of right to money or other property 
adversely claimed, in which the party fling 
the bill has no interest, although it may be in 
his hands, by compelling such adverse claim- 
ants to litigate the right or title between 
themselves, and relieve him from liability or 
litigation. 


K 


i 


BILL OF LADING 


BILL OF LADING. In common law. 
The written evidence of a contract for the 
carriage and delivery of goods sent by sea for 
a cortain freight. 1H. Bl. 359. 

A written memorandum, given by the por- 
son in command of a merchant vessel, ac- 
knowledging the receipton hoard the ship of 
certain specified goods, in good order or “ap- 
parent good order,” which he undertakes, in 
consideration of the payment of freight, to 
deliver in like good order (dangers of the sea 
excepted) at a designated place to the con- 
signee therein named or to his assigns, 

The term is often applied to a similar re- 
ceipt and undertaking given by a carrier of 
goods by land. 

A bill of lading is an instrument in writ- 
ing, signed by a carrier or his ageut, describ- 
ing the freight so as to indentify it, stating 
the name of the consignor, the terms of the 
contract for carriage, and agreeing or direct- 
ing that the freight be deiivered to the order 
or assigns of a specified person at a specified 
place. Civil Code Cal. § 2126; Civil Code 
Dak. § 1229. 


BILL OF MIDDLESEX, An old form 
of process similar to a capias, issued out of 
the court of king's bench in personal actions, 
directed to the sheriff of the county of Mid- 
dlesex, (hence the name,) and commanding 
him to take the defendant and have him be- 
fore the king at Westminster on a day named, 
to answer the plaintifi’s complaint. 


BILL OF MORTALITY. A written 
statement or account of the number of deaths 
which have occurred in a certain district dur- 
ing a given time. In some places, births as 
well as deaths are included. 


BILL OF PAINS AND PENALTIES. 
A special act of the legislature which inflicts 
a punishment, less than death, upon persons 
Bupposed to be guilty of treason or felony, 
without any conviction in the ordinary course 
of judicial proceedings. Itdiffers from a bill 
of atlainder in this: that the punishinent in- 
flicted by the latter is death. 


BILL OF PARCELS. A statement sent 
to the buyer of goods, along with the goods, 
exhibiting in detail the items composing the 
parcel and their several prices, to enable him 
to detect any mistake or omission; an in- 
voice. 


BILL OF PARTICULARS. In prac- 
tice. A written statement or specification 
of the particulars of the demand for which 
an action at law is brought, or of a defend- 


136 


SS Se 


= = — ee 


BILL OF SALE 


ant’s set-off against such demand, (including 
dates, sums, and items in detail,) furnished — 
by one of the parties to the other, either vel- 
untarily or in compliance with a judze's or- 
der for that purpose. 1 Tidd, Pr. 596-600; 
2 Archb. Pr. 221. 


BILL OF PEACE. In equity practice. 
One which is filed when a person has a right 
which may be controverted by various per- 
sons, at different times, and by different ac 
tions, 


BILL OF PRIVILEGE. In old En- 
glish law. A method of proceeding against 
attorneys and officers of the court not liable 
to urrest. 3 3). Comm, 289. 


BILL OF PROOF. In English prae- 
tice. The name given, in the mayor’s court 
of London, to a species of intervention by 4 
third person laying claim to the subject-mat- 
ter in dispute between the parties to a suit, 


BILL OF REVIVOR. In equity prac- 
tice. One which is brought to continue a 
suit which has abated before its final con- 
summation, a8, for example, by ceath, or 
mnarriage of a female plaintiff. 


BILL OF REVIVOR AND SUPPLE- 
MENT. In equity practice. One which is 
a compound of a supplemental bill and bill 
of revivor, and not only continues the suit, 
which has abated by the death of the plain- 
tiff, or the tike, but supplies any defects in 
the original bill arising from subsequent 
events, so as to entitle the party to relief on 
the whole merits of his case. 5 sJolins. Ch. 
334; Mitf. Eq, Pl. 32, 74, 


BILL OF REVIEW. In equity prac- 
tice. One whichis brought to have a decree 
of the court reviewed, corrected, or reversed, 


BILL OF RIGHTS. A formal and em- 
phatic legislative assertion and declaratiun 
of popular rights and liberties usually pro- 
mulgated upon a change of government; 
particularly the statute 1 W. & M. St. 2, ¢. 
2. Also the summary of the rights and lib- 
erties of the people, or of the principles of 
constitutional law deemed essential and fua- 
damental, contained in many of the Ameri- 
can state constitutions, 


BILL OF SALE, In contracts. A 
written agreement under seal, by which one 
person assigns or transfers his right to or in- 
terest in goods and personal chatiels to an- 
other. 

An instrument by which, In particular, 
the property in ships and vessels is conveyed. 


BILL OF SIGHT 


BILL OF SIGHT. When an importer 
of goods is lgnorant of their exact quantity or 
quality, so that he cannot make a perfect en- 
try of them, he may give to the custems offi- 
cera written deseription of them, according 
to the best of bis information and belief. 
This is called a “bill of sight.” P 


BILL OF STORE. In Englishlaw. A 
kind of license granted at the cusiom-house 
to merchants, to carry such stores and pro- 
visions as are necessary for their voyage, 
custom free. Jacob. 


BILL OF SUFFERANCEH. In English 
law. A license granted at the custom-house 
to # merchant, to suffer him to trade from 
one English port to another, without paying 
custom. Cowell. 


BILL PAYABLE. Ina merchant’s ac- 
counts, all bills which he has accepted, and 
promissory notes which he has mude, are 
called “bills payable,” and are entered in a 
ledger account under that name, and record- 
ed in a book bearing the sume title, 


BILL PENAL. In contracts. A writ- 
ten obligation by which a debter acknowl- 
edges himself indebted in a certain sum, and 
binds himself fur the payment thereof, in a 
larger sum, called a “penilty.” 


BILL QUIA TIMET. A bill invoking 
the aid of equity “because he fears,” that is, 
because the complainant apprehends an in- 
jury to his property rights or interests, from 
‘he fault or neglect of another. Such bills 
are entertained to guard aguinst possible or 
prospective injuries, and to preserve the 
means by whieh existing rights may be pro- 
tected from future or contingent violations; 
differing from injunctions, in that the latter 
correct past and present or iniiminent and cer- 
tain injuries. Bisp. Eq. § 568; 2 Story, Eq. 
Jur. § 626, 


BILL RECEIVABLE. Inawmerchant’s 
accounts, all notes, drafts, checks, etc., pay- 
able to him, or of which he is to receive the 
proceeds at a future date, are called “bills re- 
ceivable,” and are entered in a ledger-ae- 
count under that name, and also noted in a 
book bearing the same title. 


BILE RENDERED. A bill of items 
rendered by @ creditor to his debtor; an “ac- 
count rendered,” as distinguished from “an 
account stated.” 


BILL SINGLE. A written promise to 
pay toa person or persons named a stated 


137 


BILLET 


gum at a stated time, without any condition. 
When under seal, as is usually the case, it is 
sometimes called a “bill obligatory,” (¢. v.) 
It differs from a “bill penal,” (g. .,) in that 
it expresses no penalLy. 


BILL TO CARRY A DECREE INTO 
EXECUTION. In equity practice. One 
which is filed when, from the neglect of par- 
ties or some other cause, it may became im- 
possible to carry a decree into execntion with- 
out the further deeree of the court. Lind, 
Ch. Pr, 68; Story, Eq. Pl. § 42. 


BILL TO PERPETUATEH TESTI- 
MONY. A bill in equity filed in order to 
procure the tesLimony of witnesses to be 
taken as to some matter not at the time he- 
fore the courts, but which is likely at some 
future time to be in litigation, Story, Eq. 
Pl. (5th Ed.) § 300 et seq. 


BILL TO SUSPEND A DECREE, In 
equity practice. One brought to avoid or 
suspend a decree under special circumstances, 


BILL TO TAKE TESTIMONY DE 
BENE ESSE. In equity practice. One 
which is brought to take the testimony of 
witnesses to a fact material to the prosecution 
of a suit atJaw whichis actually commenced, 
where there is good canse to fear that the 
testimony may otherwise be lost before the 
time of trial. 2 Story, Hq. Jur. § 1813, n. 


BILLA. L. Lat. <A bill; an original bill. 


BILLA CASSETUR, or QUOD BILLA 
CASSETUR. (That the bill be quashed.) 
In practice. The farm of the judgment ren- 
tered for a defendant ona plea in abatement, 
where the proceeding is by bill; that is, 
where the suit is commenced by capias, and 
not by original writ. 2 Archb. Pr. K, B. 4. 


BILLA EXCAMBII. A billof exchange, 


BILLA EXONEHRATIONIS. A bill of 
lading. 


BILLA VERA. (A true bill.) In old 
practice. The indorsement anciently made 
on a bill of indictment by a grand jury, when 
they found it sufficiently sustained by evi- 
dence. 4 Bi. Comm. 306. 


BILLET. A soldier’s quarters in a civil- 
jan’s house; or the ticket which authorizes 
him to occupy them. 

In French law, A bill or promissory 
note. Bitilet & ordre, a bill payable toorder, 
Bitlet @ vue, 2 bill payable at sight. Billet 
de complaisance, an accommodation hili. 


M 


BILLET DE CHANGE 


BILLET DE CHANGE. InFrenchlaw. 
An engagenient to give, at a future time, a 
bill of exchange, which the party is not at the 
time prepared to give. Story, Bills, § 2, n. 


A bill 
Cowell. 


BILLETA. In old English law. 
or petition exhibited in parliament. 


BILLETING SOLDIERS. Quartering 
them in the houses of private citizens; Hnd- 
ing quarters for them. 


BI-METALLIC. Pertaining to, or con- 
sisting of, two metals used a3 mouey at a 
fixed relative value. 


BI-METALELISM. The legalized use of 
two metals in the currency of 4 country at a 
fixed relative value. 


BIND. To obligate; to bring or place 
under definite duties or legal obligations, par- 
ticularly by a bond or covenant; to affect one 
in a constraining or compulsory manner with 
a contract or a judgment. So long as a con- 
tract, an adjudication, or a legal relation re- 
mains in force and virtue, and continues to 
impose duties or obligations, it is said to be 
“binding.” A man is bound by his contract 
or promise, by a judgment or decree against 
him, by his bend or covenant, by an estoppel, 
atc. 


obligation to serve another; as to bind out 
an apprentice. 


BINDING OVER. The act by whicha 
court or magistrate requires a person to enter 
into a recognizance or furnish bail to appear 
for trial, to keep the peace, to attend as a 
witness, ete. 


BIPARTITE. Consisting of, or divisible 
into, two parts. A term in conveyancing de- 
scriptive of an instrument in two parts, and 
exceuted by both parties, 


BIRRETUM, BIRRETUS. A cap or 
eoif used formerly in England by judges and 
serjeants ab law. Spelman. 


BIRTH. The act of being born or wholly 
brought into separate existence, 


BIS. 


Bis idem exigi bona fides non patitur; | 
at in satisfactionibus non permittitur am- | 
plius fieri quam semel factum est. Good 


Lat. 


BIND OUT. To place one under a legal 
Twice. 


faith does not suffer the sume thing to be de- 
manded twice; and in making satisfaction 
[for a debt or demand] it is not allowed tobe 
done mure than once. 9 Coke, 53. 


138 


| sists him in matters of ecclesiastical law, and 


BLACK ACRE 


BISATLE. The father of one’s grand 
father or grandmother. 


BISANTIUM, BESANTINE, BE- 
ZANT. An ancient coin, first issued at Con. 
stantinople; it was of two sorts,—gold, eq- 
uivalent to a dneat, valued at 9s. 6d.; and 
silver, computed at 28s. ‘They were both cur. 
rent in England. Wharton. 


BiI-SCOT. In old English law. A fins 
impose for net repairing banks, ditches, and 
causeways. 


BISHOP. An English ecclesiastical dig- 
nitary, being the chief of the clergy within 
his diocese, subject to the archbishop of the 
provinces in which his diocese is situated, 
Most of thie bishops are also members of the 
house of lords. 


A bishop bas three powers: (1) A power of 
ordination, gained on his consecration, by which 
he confers orders, cte., in uny place throughout the 
world; (2) a power of jurisdiction throughout his 
see or his bishopric: (3) a power of administration 
and government of the revenues thereof, gained 
on confirmation. He has, also, a consistory court, 
to hear ecclesiastical causes, and visits and super 
intends the clergy of his diocese. He consecrates 
churches and institutes priests, confirms, sus- 
pends, excommunicates, and grants licenses for 
marriages. He has his archdeacon, dean, and 
chapter, chancellor, who holds his courts and as- 


viear-genera), He grants leases for three lives, 
or twenty-one years, reserving the accustomed 
yearly rent. Wharton. 


BISHOPRIC. In ecclesiasticallaw. The 
diocese of a bishop, or the circuit in which 
he has Jurisdiction; the oflice of a bishop. 1 
Bl. Comm. 377-382. 


BISHOP’S COURT. In English law. 
An ecclesiastical court, held in the cathedral 
of each diocese, the judge whereof is the 
bishop's chancellor, who judges by the civil 
canon law; and, if the diocese be large, le 
has his commissaries in remote parts, who 
hold eomsistory courts, for matters limited to 
them by their commission. 


BISSEXTILE. The day which is added 
every fourth year to the month of February, 
in order to make the year agree with the 
course of the sun. 

Leap year, consisting of 366 days, and 
happening every fourth year, by the addition 
of a day in the month of February, which in 
that year consists of twenty-nine days. 


BLACK ACRE and WHITE ACRE, 
Fictitious names applied to pieces of land, 
and used as examples in the old books, 


BLACK ACT 


BLACK ACT. The statute 9 Geo. I.ca 


22, so called because it was occasioned by the 


outrages committed by persons with their 
faces blacked or otherwise disguised, who 
appeared in Epping Forest, near Waltham, 
in Essex, and destroyed the deer there, and 
eommitted other offenses, Repealed by 7 & 
8 Geo. IV. ¢. 27, 


BLACK ACTS. Old Scotch statutes 
passed in the reigns of the Stuarts and down 
tothe year 1586 or 1587, so called because 
printed in black letter. Bell. 


BLACK BOOK OF HEREFORD. In 
Engiish law. An old record frequently re- 
ferred to by Cowell and other early writers. 


BLACK BOOK OF THE ADMIRAL- 
TY. A book of the highest authority in ad- 
miralty matters, generally supposed to have 
been compiled during the reign of Edward 
IL. with additions of a later date. It contains 
the laws of Oleron, a view of crimes and of- 
fenses cognizable in the admiralty, and many 
other mutters. See 2 Gall. 404. 


BLACK BOOK OF THE EHXCHEQ- 
UER. The name of an ancient book 
kept in the English exchequer, containing 
a collectiou of treaties, conventions, charters, 
etc. 


BLACE CAP. Itis a vulgar error that 
the head-dress worn by the judge in pronoun- 
cing the sentence of death is assumed as an 
emblem of thesentence. Itis part of the ju- 
dicial full dress, and is worn by the judges 
on ocexsions of especial state. Wharton. 


BLACK GAME. In English law. 
Heath fowl, in contradistinction to red game, 
AS grouse, 


BLACK-LIST. A listof persons marked 
out for special avoidance, antagonism, or en- 
mity on the part of those who prepare the 
list or those among whom it is intended to 
circulate; as where a trades-union “black- 
lists” workmen who refuse to conform to its 
rules, or where a list of insolvent or untrust- 
worthy persons is published by a commercial 
agency or mercantile association. 


BLACK-MAIL. 1. In one of its origi- 
nal meanings, this term denoted a tribute 


border to influential chieftains of Scotland, 
as a condition of securing immunity from 
raids of marauders and border thieves. 


189 


' 


BLADARIUS 


were called “black-mail,” (reditus nigri,) in 
distinction from white rents, (blanche firmes, ) 
which were rents paid in silver. 

3. The extortion of money by threats or 
overtures towards criminal prosecution or 
the destruction of a man’s reputation or social 
standing. 

In common parlance, the term is equivalent to, 
and synonymous with, “extortion, ”--the exaction 
of money, either for the performance of a duty, 
the prevention of an injury, or the exercise of an 
influence. It supposes the service to be unlawiul, 
and the payment involuntary, Not infrequently 
it is extorted by threats, or by operating upon the 
fears or the credulity, or by promises to conceal, 
or offers to expose, the weaknesses, the follies, or 
thecrimesof thevictim. 26 How. Pr. 431; 17 Abb. 
Pr. 226. 

BLACK MARIA. A closed wagon or 
van in which prisoners are carried to and 
from the jail, or between the court and the 
jail. 

BLACK RENTS. In old English law. 
Kents reserved in work, grain, provisions, or 
baser money, in contradistinction to those 
which were reserved in white money or sil 
ver, which were termed “white rents,” 
(redifus albi,) or blanch farms. Tomiins; 
Whishaw. 


BLACK-ROD, GENTLEMAN USH- 
ER OF. In England, the title of a chief 
officer of the queen, deriving his name from 
the Black Rod of office, on the top of which 
reposes a golden lion, which he carries. 


BLACK WARD. Asubvassal, who held 
ward of the king’s vassal. 


“BLACKLEG.” “The word ‘blackleg’ 
has been used long enough to be understood, 
not only by experts in slang, but by the pub- 
lic at large, and therefore ib was for the judge 
to expound its meaning. I have always un- 
derstood the word ‘ blackleg’ to mean a per- 
son who gets his living by frequenting race- 
courses ani] places where games of chance are 
played, getting the best odds, and giving the 
least he can, but not necessarily cheating. 
That is not indictable either by statute or 
at common law.” Pollock, 0. B., 3 Hurl. & 
N. 379. 

BLADA. In old English law. Growing 
crops of grain of any kind. Spelman. All 


| manner of annual grain. Cowell. Harvested 
paid by English dwellers along the Scottish | ; 8 “ 


grain. Tract. 2176, Reg. Orig. 948, 95. 


BLADARIUS. In old English law. A 


| corn-monger; meal-man or corn-chandler; a 


2. It also designated rents payable in cat- bladier, ox engrosser of corn or gruin. 


tle, grain, work, and the like. 


Such rents | Blount, 


BLANC SEIGN 140 BLENDED FUND 


BLANC SEIGN. In Louisiana, a paper BLANKET POLICY. In the law of 
signed at the boltom by him who intends to | fireinsuranee. A policy which contemplates 
bind himself, give acquittance, or compro- | that the risk isshifting, Quctuating, or vary- 
mise, at the discretion of the person whom | ing, and is applied to a class of property, 
he intrusts with such blane setgn, giving him | rather than to any particular article or thing, 
power to fill it with what he may think prop- | 1 Wood, Ins. § 40. Ses 93 U.S. 541. 


er, according to agreement. 6 Mart. (La. 
ae Peas a (5) |" -siANES. A tind of white mona 


ue Sd,,) coined by Henry V. in those parts of 
BLANCH HOLDING. Anancientten- | France which were then subject to England; 
ure of the jaw of Scotland, the duty payable | forbidden to be current in that realm by 2 
being trifling, as a penny or a pepper-corn, | Hen. VI. c.9. Wharton. 
ete., if required; similar to free and common 
BLASARIUS. An incendiary. 


socage. 
BLANCHE FIRME. Whiterent; arent BLASPHEMY. In Englishlaw. Blas. 
phemy is the offense of speaking matter re 


reserved, payable in silver. 

SURSGES. In old daw and practice, ae to God, J an enti the bible, or the 
Bl aiwiis-emogthe blank, jook of Common ft rayer, intended to wound 

the feelings of mankind or to excite contempt 

BLANK. A space left unfilled in a writ- | and hatred against the church by law estab- 
ten document, in which one or more words | lished, or to promote immorality. Sweet, 
or marks are to be inserted to complete the In American law. Any oral or written 
sense. reproach maliciously cast upon God, lis 

Also a skeleton or printed form for any | name, attributes, or religion. 2 Bish. Crim, 
legal docnment, in which the necessary and | Law, § 76; 2 Har. (Del.) 553; 20 Pick. 206; 
invariable words are printed in their proper | 1] Serg. & R. 394; 8 Johns, 290. 
order, with blank spaces left for the insertion Blasphemy consists in wantonly uttering 
of such names, dates, figures, additional | or publishing words casting contumelious 
clauses, etc., a8 may be necessary to adapt | reproach or profane ridicule upon God, Jesus 
the instrument to the particular case and to | Christ, the Holy Ghost, the Holy Scriptures, 
the design of the party using it. or the Cliristian religion. Pen. Code Dak., 


BLANK ACCEPTANCE. An accept- § 31. : 
ance of a bill of exchange written on the pa- | 12 8eneral, blasphemy may be described as con- 


peas ; : sisting in speaking evil of the Deity with an impi- 
per before the bill is made, and delivered by | gy, purpose to derogate from the divine majesty, 
_ the acceptor. 


and to alienate the minds of others from the love 
: and reverence of God. Itis purposely using wards 

BLANK BAR. Also called the “common ee ee 
bar.” The name of a plea in bar which in 


concerning God calculated and designed to impair 
an action of trespass is put in to oblige the 


and destroy the reverence, respect, and confidencs 
due to him as the intelligent creator, governor, 

plaintiff to assign the certain place where the 

trespass was committed. If was most in 


and judge of the world. It embraces the idea of 
detraction, when used towards the Supreme Be- 

practice in thecommon bench. See Cro. Jac. 

594. 


ing, as “calumny” usually carries the same ides 
when applied to an individual, Itis a willful and 
malicious attempt to lessen men’s reverence of 


Bs : God by denying his existence, or lis attributes as 
BLANK BONDS. Scotch securities, in | an intelligent creator, governor, and judge of men, 


which the ¢reditor’s name was left blank, and | and to prevent their having confidence in him as 
which passed by mere delivery, the bearer be- | SUch- 20 Pick, 211, 212. 

ing at liberty to put in his name and sue for The use of this word is, In modern .aw 
payment. Declared void by Act 1696, ec. 25, | exclusively confined to sacred subjects; but 


: blasphemia and blasphemare were anciently 
BLANK INDORSEMENT. The in-| used to signify the reviling by one person of 
dorsement of a bill of exchange or promisso- |... other. Nov. 77, ¢. 1, § 2; Spelman, 
ry note, by merely writing the name of the 
indorser, without mentioning any person to 
whom the bill or note is to be paid; called 
“blank,” because a blank or space is left 
over it for the insertion of the name of the 
indorsee, or of any subsequent holder. Oth- 
erwise called an indorsement “in blank.” 
3 Kent, Comm. 89; Story, Prom. Notes, § 138. 


BLEES. Grain; particularly corn. 


BLENCH, BLENCH HOLDING. Ses 
BLANCH HoLpING. 


BLENDED FUND. Jn England, where 
a testator directs his real and personal estate 
to be sold, and disposes of the proceeds ag 


BLIND 


forming one aggregate, this is called a | 
“blended fund.” 

| 

BLIND. One who is deprived of the 


sense or faculty of sight. 


BLINKS. In old English law. Boughs 
broken down from trees and thrown in a 
way where deer are likely to pass. Jacob. 


BLOCKADE. In international law. A | 
marine investment or beleaguering of a town 
orharbor. A sort of circumvailation round 
aplace by which all foreign connection and 
correspondence is, as far as human power 
ean effect it, to be cut off. 1C. Rob. Adm, 
151. Itis not necessary, however, that the 
place should be invested by land, as well as 
by sea, in order to constitute a legal block- 
ade; and, if a place be blockaded by sea only, 
it is no violation of belligerent rights for the 
neutral to carry on commerce with it by in- 
land communications. 1 Kent, Comm. 147. 

The actual investment of a port or place by a 
hostile force fully competent, under ordinary cir- 
cumstances, to cut off all communication there- 
with, so arranged or disposed as to be able to ap- 
ply its force to every point of practicable access or 
approach to the port or place so invested. Bouvier, 

It is called a “blockade de facto” when 
the usuil notice of the blockade has nol been 
given to the nentral powers by the govern- 
ment causing the investment, in consequence | 
of which the blockading squadron has to 
warn off all approaching vessels. 


BLOOD. Kindred; consanguinity; fam- 
ily relationship; relation by descent from a 
common ancestor. One person is “of the 
blood” of another when they are related by 
lineal descent or collateral kinship. 

Brothers and sisters are said to be of the 
whole blood if they have the same father and 
mother, and of the hajf blood if they have 
only one parent in common. 5 Whart. 477. 


BLOOD MONEY. A weregild, or pe- 
¢cuniary mulct paid by a slayer to the rela- 
tives of his victim. 

Also used, in a popular sense, as descrip- 
tive of money paid by way of reward for the 


141 


apprehension and conviction of a person 
charged with a capital crime. 


BLOODWIEIT. <Anamercement for bload- 


shed. Cowell. 

The privilege of taking such amercemenis. 
Skene. 

A privilege or exemption from paying a 
fine or amercement assessed for bloodshed. 
Cowell. 


BOARD OF HEALTH 


BLOCDY HAND. In forest law. The 
haying the hands or other parts bloody, 
which, in a person caught trespassing in the 
forest against venison, was one of the four 
kinds of circumstantial evidence of his hav- 
ing killed deer, although he was not found 
in the act of chasing or hunting. Manwood. 


BLUE LAWS. A supposititious code of 
severe laws for the reguiation of religious 
and personal conduct in the colonies of Con- C 
necticut and New Haven; hence any rigid 
Sunday laws or religious regulations. The 
assertion by some writers of the existence of 
the blue laws has no other basis than the 
adoption, by the first authorities of the New D 
Haven colony, of the Seriptures as their 
code of law and government, and their strict 
application of Mosaic principles. Century 


Dict. E 

BOARD. A committee of persons organ- 
ized under authority of law in order to exer- 
cise certain authorities, have oversight or 
control of certain matters, or discharge cer- 
tain functions of a magisterial, representa- F 
tive, or fiduciary character. Thus, “board 
of aldermen,” “board of health,” “board of 
directors,” “board of works.” 

Also lodging, food, entertainment, fur- 
nished to a guest at an inn or boarding- 
house, 


BOARD OF BEALTH. A board or 
commission created by the sovereign authority a 


‘or by municipalities, invested with certain 
| powers and charged with certain duties in 


relation tothe preservation and improvement 
of the public health. 

General boards of health are usually charged j 
with general and advisory duties, with the 
collection of vital statistics, the investigation 
of sanitary conditions, and the methods of 
dealing with epidemic and other diseases, the 
quarantine laws, etc. Such are the national 
board of health, created by act of congress of 


| Mareh 8, 1879, (20 St. at Large, 484,) and 


the state boards of health created by the leg- 
islatures of mest of tle states. K 
Locei boards of health are charged with 
more direct and immediate means of secur- 
ing the public health, and exercise inquisi- 
torial and executive powers in relation to 
sanitary regulations, offensive nuisazces, 
markets, adulteration of food, slaughter- 
liouses, drains and sewers, and similar sub- 
jects. Such boards are constituted in most 
American cities either by general law, by 
their charters, or by municipal ordinance, ii 
and in England by the statutes, 11 &12 Vict. 


BOARD OF SUPERVISORS 142 BODY OF AN INSTRUMENT 


c, 68, and 21 & 22 Vict. ¢. 98, and other acts | uponspecial considerations. Butitisa guast 
amending the same. public house, where boarders are generally 
and habitually kept, and which is held out 

BOARD OF SUPERVISORS. Under 


‘ 3 and known as a place of entertainment of 
the system oblaining in some of the northern | ¢),4¢ kind, 1 Tae: 4.86. 


states, thi igs giv nize i : Petre 
tales; tine name is) given to a orga a A boarding-house is not an inn, the distinction 


committee, or body of officials, composed of | peing that a boarder is received into a house by a 
delegates from the several townships in a | voluntary contract, whereas an innkeeper, in the 
county, constituting part of the county gov- | absence of any reasonable or lawful excuse, 
ernment, and having special charge of the is bound to receive a guest when he presents him 


Veleesioe thecebint self. 2 HI. & Bl. 144. 
EO aE Hele y The distinction between a boarding-house and 


be Ge an inn is that in a boarding-house the guest is un- 
BOARD OF TRADE. An organization der ap express contract, at a certain rate for a cer. 


of the principal merchants, manufacturers, | tain period of time, while in an inn there is no ex- 
tradesmen, etc., of 2 city, for the purpose of | press agreement; the guest, being on his way, is 
furthering its commercial interests, encour- | ntertained from day to day, according to his busi- 
uging the establishment of manufactures, tng Eyes tie seuplneg edn ipaciy = ieee 
promoting trade, securing or improving 
shipping facilities, and generally advancing BOAT. A small open vessel, or water- 
the prosperity of the place as an industrial | craft, usually moved by oars or rowing. It 
and commercial community. is commonly distinguished in law from a ship 
In England, one of the administrative de- or vessel, by being of smaller size and with- 
partments of government, being a committee Out adeck. 5 Mason, 120, 137. 
of the privy council which is appointed for ROG. 
the consideration of matters relating to trade 
and foreign plantations. 


In Saxon law. A book or writing; 
a deed or charter. Boeland, deed or char- 
terland. tand boc, a writing for convey- 
BOARD OF WORKS. The nameof a ing land; a deed or charter: a land-book,. 
board of officers appointed for the better local BOC HORDE. A place where books, 
management of the English metropolis. writings, or evidences were kept. Cowell. 


They hava the care and management of all | BOC LAND. In Saxon law. Allodial 
| 


grounds and gardens dedicated to the use of : : 
the inhabitants in the metropolis; also the es held by deed or other written evidence 
of title. 


superintendence of the drainage; also the 
regulation of the street trailic, and, general- BOCERAS. Sax. A _ ascribe, notary, or 
chancellor among the Saxons, 


ly, of the buildings of the metropolis. 

ee: BODMERIE, BODEMERIE, BODDE- 
BOARDER. One who, being the inhab- | MERBY. Belg. and Germ. Bottomry, 

itant of a place, makes a special contract | (9 ®) 

with another person for food with or without BODY. Aperson. Used of a natural 


fodging. 7 Cush. 424; 36 lowa, 651. body, or of an artificial one created by law, as 
One who has food and ledging in the house | a corpuration. 
or With the family of another for an ugreed Also the main part of any instrument; in 


price, and usually under a contract intended | deeds it is spoken of as distinguished from 
to continue for a considerable period of time. | the recitals and other introductory parts and: 


1 Tex. App. 220; 7 Rob, (N. ¥.) 561. signatures; in affidavits, from the title and 
The distinction between a guest and & | jurat. 
boarder is this: The guest comes and re- The main part of the human body; the 


mains without any bargain for time, and | trunk. 22 N. ¥. 149. 
may go away when he pleases, paying on] 
for the the) ee he cities: et BODY CORPORATE. A corporation. 
the fact that he may have remained a long BODY OF A COUNTY. A county at 
time in the inn, in this way, does not make | large, as distinguished from any particular 
him a boarder, instead of a guest. 25 lowa, | place within it. A county considered as a 
Dad. territorial whole. 


BOARDING-HOUSE. A _ boarding- BODY OF AN INSTRUMENT. The 
house is not in common parlance, or in Jegal | main and operative part; the substantive pro- 
Meaning, every private house where one or | visions, as distinguished from the recitals, 
nuwore boarders are kept occasionally only and | title, jurat, ete. 


BODY OF LAWS 


BODY CF LAWS. An organized and sys- 
tematic collection of rules of jurisprudence; 
as, particularly, the body of the eivil law, or 
corpus juris civilis. ; 


BODY POLITIC. A term applied to a 
corporation, which is usually designaied as a 
“hody corporate and politic.” 

The term is particularly appropriate to a 
public corporation invested with powers and 
duties of government, It is often used, ina 
rather loose way, to designate the state or na- 
tion or sovereign power, or the government 
of a county or municipality, without distinct- 
ly connoting any express and individual cor- 
porate character, 


BOILARY. Water arising from a salt 
well belonying toa person who is not the 
owner of the soil, 


BOIS, or BOYS. Wood; timber; brush. 


BOLHAGIUM, or BOLDAGIUM. A 
little house or cottage, Blount. 


BOLT. The desertion by one or more 
persons from the political party to which he 
or they belong; the permanent withdrawal 
before adjournment of a portion of the dele- 
vaies to a polilical convention. Rap. & L. 


BOLTING. In English practice. A term 
formerly used in the English inna of court, 
but more particularly at Gray’s Inn, signify- 
ing the private arguing of cases, as distin- 
guished from mvoting, which was a more 
formal and public mode of argument. Cow- 
ell; Tomiins; Holthouse 


BOMBAY REGULATIONS. Regula- 
tions passed for the presidency of Bombay, 
and the territories subordinate thereto. They 
were passed by the governors in council of 
Bombay until the yeur 1334, when the power 
of local legislation ceased, and the acts relat- 
ing thereto were thenceforth passed by the 
governor general of India in council. Moz- 
ley & Whitley. 


BON. Fr. Inold Frenchlaw. A royal 
osder or check on the treasury, invented by 
Francis I. Bon pour mille iferes, good for 
a theusand livres. Step. Lect. 387. 

In modern law. The name of a clause 
(on pour » good for so much) added 
to a cedule or promise, where it is not in 
the handwriting of the signer, containing the 
amount of the sum which he obiiges himself 
to pay. Poth. Obl. part 4, ch. 1, arf. 2, $1. 


BONA. Goods; property; possessions, 
Tn the Roman law, this term was used to des- 


143 


BONA FIDE PURCHASER 


ignate all species of property, real, personal, 
and mixed, but was more strictly applied to 
real estate. In modern eivil law, it includes 


; both personal property (technically so called) 


and chuttels reai, thus corresponding to 
the French étevs. In the common law, ita 
lise was confined to the description of moy- 
able goods. 


BONA CONFISCATA. Goods confis- 
eated or forfeited to the imperial jise or treas- 
ury. 1 5B). Comm. 299. 


BOW4 ET CATALLA, Goods and chat- 
tels. Movable property. 

This expression includes all personal things 
that belong toa man. 16 Mees. & W. 68. 


BONA FELONUM. In English law. 
Goods of felons; the goods of one convicted 
of felony. 5 Coke, 110. 


BONA FIDE. In or with good faith; 
honestly, openly, and sincerely; without de- 
ceit or fraud. 

Truly; actually; without simulation or 
pretense. 

Innoeently; in the attitude of trust and 
eonfidence; without notice of fraud, ete, 

‘The phrase “bona fide” is often used ambig¢uous- 
ly; thus, the expression “a bona fide holder for 
value” may either mean a holder for real value, as 
opposed to a holder for pretended value, or it may 
meun a holder for real value without notice of any 
fraud, ete, Byles, Bills, 121. 


Bona fide possessor facit fructus con- 
sumptos stios. By good faith a possessor 


mikes the fruits consumed hisown. Tray. 
Lat. Max. 57. 
BOWA FIDE PURCHASER. A pur- 


chaser for a valuable consideration paid or 
parted with in the belief that the vendor hud 
a right to sell, and without any suspicious 
circumstances to put him on inquiry. 12 
Barb. 605. 

One who acts without covin, fraud, or col- 
jusion; one who, in the commission of or 
connivance at no fraud, pays full price fcr 
the property, and in good faith, honestly, and 
in fair dealing buys and goes into posses. 
sion. 42 Ga, 250. 

A tona fide purchaser is one who buys 
property of another without notice that some 
third person has a right to, or interest in, 
such property, and pays a full and fair price 
for the same, at the time of such purchase, 
or before he has notice of the claim or inter- 
est of such other in the property. 65 Barb. 
23) 


ii 


BONA FIDES 


BONA FIDES. Good faith; Integrity | 
of dealing; honesty; sincerity; the opposite 
of mula fides and of dolus mals. 


Bona fides exigit ut quod convenit’ 
fiat. Good faith demands that what is 
agreed upon shall be done. Dig. 19, 20, 21; 
Id. 19, 1, 50; Id. 50, 8, 2, 13. 


Bona fides non patitnr ut bis idem ex- 
igatur. Good faith does not allow us to de- 
mand twice the payment of the same thing, 
Dig. 50, 17, 57; Broom, Max. 338, note; 4 
Johns. Ch. 143, 


BONA FORISFACTA. Goods for- 
feited. 
BONA FUGITIVORUM. In English 


law. 
of him who ilies for felony. 


Goods of fugitives; the proper goods 
5 Coke, 1090. 


BONA GESTURA. Good abearance or 
behavior, 


BONA GRATIA. In the Roman law. 
By mutual consent; voluntarily. A term 
applied to a species of divorce where the par- 
ties separated by mutual consent; or where 
the parties renounced their marital engage- 
ments without assigning any cause, or upon 
mere pretexis. Tayl. Civil Law, 361, 362; 
Calyin. 


BONA MEMORIA. Good memory. 
Generally used in the phrase sane mentis et 
bone memori@, of sound mind and zood 
memory, as descriptive of the mental capac- 
ity of a testator. ; 


BONA MOBILIA. In the civii law. 
Movables. Those things which move them- 
selves or can be transported from one place 
to another, and not permanently attached to 
a farm, heritage, or building. 


BONA NOTABILIA. In English pro- 
bate law. Notable goods; property worthy 
of notice, or of suilicient value to be accounted 
for, that is, amounting to £5. 

Where a decedent leaves goods of suificient 
amount (bona notabilia) in different dio- 
ceses, administration is granted by the metro- 
politan, to prevent the confusion arising 
from the appointment of many different ad- 
ministrators. 2 Bl. Comm, 509; Rolle, Abr. 
908. 


BONA PATRIA. In the Scotch law. 
An assize or jury of good neighbors. Hell. 


BONA PERITURA. Goods of a per- 
ishable nature; such goods as an executor or 
trustee must use diligence in dispusing of 
and converting them into money. 


144 


BOND 


BONA UTLAGATORUM. Goods of 
outlaws; goods belonging to persons ouf- — 
lawed, 


BONA VACANTIA. Vacant, un- 
claimed, or stray goods. Those things in 
which nobody claims a property, and which 
belong to the crown, by virtue of its prerog- 
ative. 1 Bl, Comm. 298. 


BONA WAVIATA. In English law, 
Waived gools; goods stolen and waived, 
that is, thrown away by the thief in his 
flight, for fear of being apprehended, or to 
faeilitute his escape; and which go to the 
sovereign. 5 Coke, 109; 1 Bl. Comm. 29b, 


BONA FIDEI. In the civil law. Of 
good faith; in goud faith. This is a more 
frequent form than bone fide. 


BON FIDEI CONTRACTS. Incivil 
and Scotch law. Those contracts in which 
equity may interpose to correct inequalities, 
and to adjust all matters according to the 
plain intention of the parties. 1 Kames, Eq. 
200. 


BONZE FIDEI EMPTOR. A purchas- 
er in good faith. One who either was igno- 
rant that the thing he bought belonged toan- 
other or supposed that the seller had a right 
tosellit. Dig. 50, 16, 109. See Id. 6, 2, 7, 
ie 


BONA FIDEI POSSEHESSOR. A pos- 
sessor in good faith. One who believes that 
no other person has a better right to the pos- 
session than himself. Mackeld. Rom. Law, 
§ 243, 


Bong fidei possessor in id tantum 
quod sese pervenerit tenetur, A possessor 
in good faith is only liable for that which he 
himself has obtained. 2 Inst. 285. 


BONANGA. In mining parlance, the 
widening out of a vein of silver, suddenly, 
and extraordinarily; hence any sudden, un- 
expected prosperily in mining. Webster, 


BOND. A contract by specialty to pay a 
certain sum of money; being a deed or instra- 
ment under seal, by which the maker or ob- 
ligor promises, and thereto binds himself, 
his heirs, executors, and administrators, to 
pay a designated sum of money to another; 
usually with a clause to the effect that upon 
performanee of a certain condition (as to pay 
another and smaller sum) the obligation shall 
be void. 

The word “bond” shall embrace every written 
undertaking for the payment of money or acknowl. 
edgment of being bound for money, conditioned 


BOND 


to be void on the performance of any duty, or the 
occurrence of anything therein expressed, and sub- 
scribed aad delivered by the party making it, to 
take effect as his obligation, whether it be sealed 
or unsealed; and, when a bond is required by law, 
an undertaking in writing without seal shall be suf- 
ficient. Rev. Code Miss. 1880, § 19. 

The word “boud™ has with us a definite legal 
signification. It has a clause, with a sum fixed as 
8 penalty, binding the parties to pay the same, con- 
ditioned, however, that the payment of the penalty 
may be avoided by the performance by some one 
or more of the parties of certain acts. 3 Redf.Sur. 
459, 

Bonds are either single (simple) or double, 
(conditional.) 

A single bond is one in which the obligor 
binds himself, his heirs, ete., to pay a certain 
sum of money to another person at a specified 
day. 

A double (or conditional) bond is one to 
which a condition is added that if the obligor 
foes cr forbears from doing some act the ob- 
ligation shall be void. Formerly sucha con- 
dition was sometimes contained in a separate 
instrument, and was then called a “defea- 
Bance.” 

The term is also used to denote debentures 
or certificates of indebtedness issued by pub- 
lie and private corporations, governments, 
and municipalities, as security for the repay- 
ment of money loaned tothem. Thus, “rail- 
way aid bonds” are bonds issued by munici- 
pal corporations to aid in the construction of 
railroads likely to benefit them, and exchanged 
for the company’s stock, 


BOWD. InoldScotchlaw. A bond-man; 
asilaye. Skene. 


BOND, v. To give bond for, as for du- 
ties on goods; to secure payment of duties, 
by giving bond. Bonded, secured by lond. 
Bonded goods are those for the duties on 
which bonds are given. 


BOND AND DISPOSITION IN SE- 
CURITY. In Scotch law. A bond and 
mortgage on land. 


BOND AND MORTGAGE. A species 
of security, consisting of a bond conditioned 
for the repayment of a loan of money, and a 
mortgage of realty to secure the performance 
of the stipulations of the bond. 


BOND CREDITOR. 
debt is secured by a bond. 


A creditor whose 


BOND TENANTS. In English law. 
Copyholders and customary tenants are some- 
times socalled. 2 Bl. Comm. 148. 

AM. DIOT.LAW—10 


145 


BONITARIAN OWNERSHIP 


BONDAGE. Slavery; involuntary per- 
sonal servitude; captivity. In old English 


law, Villenage, villein tenure. 2 Bl. Comm. 
92. 
BONDED WAREHOUSE. Ses WARE- 


HOUSE SYSTEM. 


BONDSMAN. A surety; one who has 
entered into a bond as surety. The word 
seems to apply especially to the sureties upon 
the bonds of officers, trustees, etc., while dail 
should be reserved for the sureties on recog- 
nhizances and bail-bonds. 


BONES GENTS. L. Fr. In old En- 
glish law. Good men, (of the jury.) 


BONI HOMINES. In old European 
law. Good men; a name given in early 
European jurisprudence to the tenants of the 
lord, who judged each other in the lord’s 
courts. 3 Bl. Comm. 349. 


Boni judicis est ampliare jurisdiction- 
em. It is the part ofa good judge to enlarge 
(or use liberally) his remedial authority or 
jurisdiction. Ch. Prec. 329; 1 Wils. 284, 


Boni judicis est ampliare justitiam. 
It is the duty of a good judge to enlarge or 
extend justice. 1 Burr. 304. 


Boni judicis est judicium sine dila- 
tione mandare executioni. It is theduty 
of a good judge to cause judgment to be exe- 
cuted without delay. Co. Litt, 289. 


Boni juaicis est lites dirimero, ne lis 
ex lite oritur, et interest reipublice ut 
sint fines litium. It is the duty of a good 
judge to prevent litigations, that suit may 
not grow out of suit, and if concerns the 
welfare of a state that an end be put to liti- 
gation. 4 Coke, 15); 5 Coke, Sle. 


BONIS CEDERE. In the civil law. To 
make a transfer or surrender of property, aa 
a debtor did to his creditors, Cod. 7, 71. 


BONIS NON AMOVENDIS. A writ 
addressed to the sheriff, when a writ of error 
has been brought, commanding that the per- 
son against whom judgment has been ob- 
tained be not suffered to remove his goods 
till the error be tried and determined. Reg. 
Orig. 131. 


BONITARIAN OWNERSHIP. In 
Roman law. <A species of equitable title to 
things, as distinguished from a title acquired 
according to the strict forms of the munici- 
pal law; the property of a Roman citizen ina 
subject capable of quiritary property, acquired 


D 


E 


F 


: BONO ET MALO 


by a title not known to the civil law, but in- 
troduced by the prtor, and protected by his 
imperium or supreme executive power, & g., 
where res mancipé had been transferred by. 
mere tradition. Poste’s Gaius Inst. 187, See 
QUIRITARIAN OWNERSHIP. 


BONO ET MALO. A special writ of 
jail delivery, which formerly issued of course 
for each particular prisoner. 4 Bl. Comm. 
270. 


Bonum defendentis ex integra causa; 
malum ex quolibet defectu. The suc- 
cess of a defendant depends on a perfect case; 
his loss arises from some defect. 11 Coke, 
68a. 


Bonum necessarium extra terminos 
necessitatis non est bonum. A good 
thing required by necessity is not good be- 
yond the limits of such necessity. Hob. 
144. 


BONUS. 
toa grantor or vendor. 

An extra consideration given for what is 
received. 

Any premium or advantage; an occasional 
extra dividend, 

A premium paid by a company for a char- 
ter or other franchises. 

“A definite sum to be paid at one time, 
for a loan of money for a specified period, 
distinct from and independently of the inter- 
est.” 24 Conn. 147. 

A bonus is not 4 gift or gratuity, but a sum paid 
for services, or upon some other consideration, but 


in addition to or in excess of that which would or- 
dinarily be given. 16 Wall. 452, 


Bonus judex secundum sequum et 
bonum judicat, et equitatem stricto juri 
prefert. <A good Judge decides according to 
what is just and good, and prefers equity to 
strict law. Co. Litt. 34. 


BOOK. 1. A general designation applied 
io any literary composition which is printed, 
bub appropriately to a printed composition 
bound in a volume, 

2. A bound volume consisting of sheels of 
paper, not printed, but containing manu- 
script entries; such as a merchant's account- 
books, dockets of courts, etc. 

8, A name often given to the largest subdi- 
visions of a treatise or other literary compo- 
sifion. 

4, In practice, the name of “book” is given 
to several of the more important papers pre- 
pared in the progress of a cause, though en- 
tirely written, and not at allin the book form; 


146 


A gratuity. A premium paid | 


and differed in nothing from free socage land, 


BOON DAYS 


1 sueb as demurrer-hooks, error-books, paper- 
i} 
books, ete. 


BOOK DEBT. In Pennsylvania prac- 
tice. The act of 28th March, 1835, § 2, in 
using the words, “book debt” and “book en- 
tries,” refers to their usual signification, 
which includes goods sold and delivered, and 
work, labor, and services performed, the evi- 
dence of which, on the part of the plaintiff, 
consists of entries in an original book, such 
as is competent to go to a jury, were the is- 
sue trying before them. 2 Miles, 102. 


BOOK OF ACTS. A term applied to 
the records of a surrogate's court. 8 East, 
187. 


BOOK OF ADJOURNAL. In Scotch 
law. The original records of criminal trials 
in the court of justiciary. 


BOOK OF RATES. An account or 
enumeration of the duties or tariffs author. 
ized by parliament. 1 Bl. Comm. 316. 


BOOK OF RESPONSES. In Scotch 
law. An account which the directors of the 
chancery kept to enter all non-entry and re 
lief duties payable by heirs who take precepts 
from chancery. 

BOOKLAND. In English law. Land, 


alsocalled “charter-land,” which was held by 
deed under certain rents and free services, 


ee 


2 Bl. Comm. 90. 


BOOKS. All the volumes which contain 
authentic reports of decisions in English 
courts, from the earliest times to the present, 
are called, par excellence, “The Books.” 
Wharton. 


BOOKS OF ACCOUNT. The books in 
which merchants, traders, and business men 
generally keep their accounts. 


BOOM. An inclosure formed upon the 
surface of a stream or olber body of water, 
by means of piers and a chain of spars, for 
the purpose of collecting or storing logs or 
timber, 


BOOM COMPANY. A company formed 
for the purpose of improving streams for the 
floating of logs, by means of booms and oth- 
er contrivances, and for the purpose of run- 
ning, driving, booming, and rafting logs. 


BOOM DAYS. In English law. Cer- 
tain days in the year (sometimes called “dre 
days”) on which tenants in copyhold were 
obliged to perforin corporal services for the 
lord. Whishaw. 


BOOT 


BOOT, or BOTE. An old Saxon word, 
equivalent to “estovers.” 


BOOTING, or BOTING, CORN. Cer- 
tain rent corn, anciently so called. Cowell. 


BOOTY. Property captured from the 
enemy in war, on land, as distinguished from 
“prize,” which is a capture of such property 
on the sea. 


BORD. An old Saxon word, signifying a 
eottage; a house; a table. 


PORDAGE. In old English law. A 
species of base tenure, by which certain lands 
(termed “bord lands,”) were anciently held 
in England, the tenunts being termed “bor- 
davii;” the service was that of keeping the 
lord in small provisions. 


BORDARIA, A cottage. 


BORDARII, or BORDIMANNI. In 
old English law. Tenants of a less servile 
condition than the villant, who had a bord 
or cottage, with a small parce! of land, al 
lowed to them, on condition they should sup- 
ply the lord with poultry and eggs, and other 
smill provisions for his board or entertain- 
ment. Spelman. 


BORD-EBRIGCH. In Saxen law. A 
breach or violation of suretyship; pledge 
breach, or breach of mutual fidelity. 


BORDER WARRANT. A process 
granted by a Judge ordinary, on either side 
of the border between England and Scotland, 
for arresting the person or effects of a person 
living on the opposite side, until he find secu- 
rity, judicio sisti, Bell. 


BORDEREAU. In French law. A note 
enumerating the purchases and sales which 
may have been made by a broker or stock- 
broker. This name is also given to the state- 
ment given to a banker with bills for dis- 
count or coupons to receive. Ary. Fr. Mere, 
Law, 547. 


BORD-HALFPENNY. <A_ customary 
small toll paid to the lord of a town for set- 
ting up boards, tables, booths, ete., in fairs 
or markets. 


BORDLANDS. The demesnes which the 
lords keep in their hands for the maintenance 
of their board or table. Cowell. 

Also lands held in bordage. Lands which 
the lord gave to tenants on condition of their 
supplying his table with small provisions, 
poultry, eggs, ete. 


147 


' same is true of Connecticut. 


BOROUGH 


BORDLODE. A service anciently re- 
quired of tenants to carry timber out of the 
woods of the lord to his house; or it is said 
to be the quantity of food or provision which 
the bordavit or bordmen paid for their bord- 
lands. Jacob. 


BORDSERVICH, A tenure of bord- 
lands. 


BOREL-FOLK. Country people; derived 
from the French bowrre, ( Lat, jloccus,) a lock 
of wool, because they covered their heads with 
such stuff, Blount. 


BORG. In Saxon law. A pledge, pledge 
giver, or surety. The name given among 
the Saxons to the head of each family com- 
posing a tithing or decennary, each being the 
pledge for the good conduct of the others, 
Also the contract or engagement of surety- 
ship; and the pledge given. 


BORGBRICHE. A breach or violation 
of suretyship, or of mutual fidelity. Jacob. 


BORGESMON. InSaxonlaw. The name 
given to the head of each family composing 
a tithing. 


BORGH OF HAMHALD. Inold Scotch 
law. A pledge or surety given by the seller . 
of goods to the buyer, to make the goods 
forthcoming as his own proper goods, and to 
warrant the same to him. Skene. 


BOROUGH. In English law. A town, 
a walled town. Co. Litt. 1086. <A town of 
note or importanee; a fortified town. Cow- 
ell. An ancient town. Litt. 164. A eor- 
porate town that is not a city. Cowell. An 
ancient town, corporate or not, that sends 
burgesses to parliament. Co. Lité&. 109a,; 1 
Bl. Comm. 114, 115. A city or other town 
sending burgesses to parliament. 1 Steph. 
Comm. 116. A town or place organized for 
local government. 

A parliamentary borough is a town which 
returns one or nore members to parliament. 

In Scotch law. A corporate body erect- 
ed by the charter of the sovereign, consisting 
of the inhabitants of the territory erected into 
the borough. Bell. 

In American law. In Pennsylvania, 
the term denotes a part of a township having 
a charter for municipal purposes; and the 
28 Conn. 128. 
See, aiso, 1 Dill. Mun. Corp. § 41, n. 

“Borough” and “village” are duplicate or cumu- 
lative names of the same thing; proof of either 


will sustain a charge in an indictment employing 
the other term. 18 Ohio St 496. 


BOROUGH COURTS 


BOROUGH COURTS. In English 
Jaw. Private and limited tribunals, held by 
prescription, charter, or act of parliament, in 
particular districts for the convenience of the 
inhabitants, that they may prosecute small 
suits and receive justice at home. 


BOROUGH ENGLISH. A custom 
prevalent in some parts of England, by 
which the youngest son inherits the estate 
in preference to his older brothers. 1 Bl. 
Comm. 75. 


BOROUGH FUND. ‘In English law. 
The revenues of a municipal borough derived 
from the rents and produceof the land, hous- 
es, and stocks belonging to the borough in 
its corporate capacity, and supplemented 
where necessary by a borough rate. 


BOROUGH-HEADS. Borough-holders, 
bors-holders, or burs-holders. 


BOROUGH-REEVE. Thechief munci- 


ipal officer in towns unincorporated before | 


the municipal corporations act, (6 & 6 Wm. 
IV. c. 76.) 


BOROUGH SESSIONS. Courts oflim- 
ited criminal jurisdiction, established in En- 
glish boroughs under the municipal corpora- 
tions act. 


BORROW. This word is often used in 
the sense of returning the thing borrowed 
im specie, ag to borrow a book or any other 
thing tobe returned again. Butitis evident 
that where money is borrowed, the identical 
money loaned is not to be returned, because, 
if this were so, the borrower would derive no 
benefit from the loan. In the broad senseof 
the term, it means a contract for the use of 
monsy. 13 Neb. 88, 12 N. W. Rep. 812; 39 
Leg, int. 98; 78 N. Y. 177. 


BORROWE. Inold Scotch law. A 
pledge. 


BORROWER. One te whom money or 
other property is loaned at his request. 


BORSHOLDER. Im Saxon law. The 
borough’s ealder, or headborough, supposed 
to be the discrectest man in the borough, 
town, or tithing, 


BOSCAGE. In English law. The food 
which wood and trees yield to cattle; browse- 
wood, mast, etc. Spelman. 

An ancient duty of wind-fallen wood in the 
forest, Manwood. 


BOSCARIA, Wood-hvuuses, or ox-houses, 


148 


BOTTOMRY 


BOSCUS. Wood; growing wood of any 
kind, large or small, timber or coppice. Cow- 
ell; Jacob. 


BOTE. In old English law. <A recom- 


| pense or compensation, or proijit or advan- 


tage. Also reparation or amends for any 
damage done. Necessaries for the mainte- 
nanee and carrying on of husbandry. An 
allowance; the ancient naine for estovers. 


House-boteisa sufticient allowance of wood from 
off the estate to repair or burn in the house, and 
sometimes termed “fire-bote;” plow-bote and 
eart-bote are wood to be employed in making and 
repairing all instruments of husbandry; and /uay- 
bote or hedge-bote is wood for repairing of 
hays, hedges, or fences. The word also signities 
reparation for any damage or injury done, as man- 
bote, Which was a compensation or amends for a 
tran slain, ete. 


BOTELESS. In old English law. With- 
out amends; without the privilege of making 
Satisfaction for a crime by a pecuniary pay- 
ment; without relief or remedy. Cowell. 


BOTHA. In old English law. A booth, 
stall, or tent to stand in, in fairs or markets, 
Cowell. 


BOTHAGIUM, or BOOTHAGE. Ous- 
fomary dues paid to the lord of a manor or 
soil, for the pitching or standing of booths 
in fairs or markets. 


BOTHWA, or BUTHNA. Inold Scotch 
law. A park where cattle are inclosed and 
fed. Bothna also signifies a barony, lord- 
ship, etc. Skene, 


BOTTOMAGHE. L. Fr. Bottomry. 


BOTTOMRY. Inmaritimelaw. <A con- 
tract in the nature of a mortgage, by which 
the owner of a ship borrows money for the 
use, equipment, or repair of the vessel, and 
for a definite term, and pledges the ship 
(or the keel or boffom of the ship, pars pro 
toto) as a security for its repayment, with 
muritime or extraordinary interest on ac- 
count of the marine risks to be borne by the 
lender; it being stipulated that if the ship be 
lost in the course of the specified voyage, or 
during the limited time, by any of the perils 
enumerated in the contract, the lender shall 
also lose his money. 2 Hagg. Adm, 48, 53; 
2 Sum. 157. 

Bottomry is a contract by which a ship or 
its freightage is hypothecated as security for 
a loan, which is to be repaid only in case the 
ship survives a particular risk, voyage, or 
period. Civil Code Cal. § 3017; Civil Code 
Dak. § 1783. 


When the loan is uot made upon the ship, buton 
the goods laden on board, and which are to be sold 


BOTTOMRY LOND 


or exchanged in the course of the voyage, the bor- 
rower’s personal responsibility is deemed the prin- 
cipal security for the performance of the contract, 
which is therefore called “respondentia,” which 
see. And in a loan upon respondentia the lender 
must be paid his principal and interest though the 
ship perish, provided the goods are saved. In 
most other respects the contracts of bultaumry and 
of respondeniia stand substantially upon the same 
footing. Bouvier. 


BOTTOMRY BOND. The instrument 
embodying the contract or agreement of bot- 
tomry. 

The true definition of a bottomry bond, in the 
sense of the general maritime law, and independ- 
ent of the peculiar regulations of the positive 
codes of different commercial nations, is that itis 
acoutract for a loan of money on the bottom of 
the ship, at an extraordinary interest, upon mari- 
time risks, to be borne by the lender for a voyags, 
or for a definite period. 2 Sum, 157. 


BOUCHE. Fr. Themouth. An allow- 
ance of provision. <Avoir bouche & court; to 
have an allowance at court; to be in ordinary 
at court; to have meat and drink scot-free 
there. Blount; Cowell. 


BOUCHE OF COURT, or BUDGE OF 
COURT. A certain allowance of provision 
from the king to his knights and servants, 
who attended him on any military expedi- 
tion. 


BOUGH OF A TREE. In fendal law. 
A symbol which gave seisin of land, to hold 
of the donor in capite. 


BOUGHT AND SOLD NOTES. When 
a broker is employed to buy and sell goods, 
he is accustomed to give to the buyer a note 
of the sale, commoniy called a “sold note,” 
and to the seller a like note, commonly 
called a “bought note,” in his own name, 
as agent of each, and thereby they are re- 
spectively bound, if he has not exceeded his 
authority. Story, Ag. § 28. 


BOULEVARD. The word “boulevard,” 
which originally indicated a bulwark or rain- 
part, and was afterwards applied to a pub- 
lic walk or road on the site of a demolished 


149 


if 


fortification, is now employed in the same | 


sense a8 public drive. <A park is a piece 
of ground adapted and set apart for pur- 
poses of ornament, exercise, and amusement. 
It is not a street or ruad, though carriages 
may pass through it. 

Se a boulevard or publie drive is adapted 
and set apart for purposes of ornamenit, ex- 
ercise, and amusement. It is not technically 
u street, avenue, or highway, though a car- 
riage-way over it is a chief feature. 52 
How, Pr. 445. 


BOUNTY 


BOUND. As an adjective, denotes the 
condition of being constrained by the obli- 
gations of a bond or a covenant. In the 
law of shipping, “bound to” or “bound for” 
denotes that the vessel spoken of is intended 
or designed to make the voyage to the place 
named. 

As a noun, the term denotes a limit or 
boundary, or a line inclosing or marking off 
a tract of land. In the familiar phrase 
“metes and bounds,” the former term prop- 
erly denotes the measured distances, and the 
Jatter the natural or artificial marks which 
indicate their beginning and ending. A dis- 
tinction is sometimes taken between “bound” 
and “boundary,” to the effect that, while the 
former signilies the limit itself, {and may be 
an imaginary line,) the latter designates a 
visible mark which indicates the limit. But 
no such distinction is commonly observed. 


BOUND BAILIFFS. In English law. 
Sheriffs’ officers are so called, from their be- 
ing usually bound to the sheriff in an obli- 
gation with sureties, for the due execution 
of their office. 1 Bl. Comm. 345, 346. 


BOUNDARY. By boundary is under- 
stood, in general, every separation, natural 
or artificial, which marks the contines or line 
of division of two contizuous estates. ‘Trees 
or hedges may be planted, ditches may be 
dug, walls or inclosures may be erected, to 
serve us boundaries. But we most usually 
understand by boundaries slones or pieces of 
wood inserted in the earth on the confines of 
the two estates. Civil Code La. art, 826. 

Boundaries are either natural or artificial. 
Of the former kind are water-courses, grow- 
ing trees, beds of rock, and the like. Artifi- 
cial boundaries are landmarks or signs erect- 
ed by the hand of man, as a pole, stake, pile 
of stones, ete. 


BOUNDED TREE. A tree marking or 
staniling at the corner of a field or estate. 


BOUNDERS. In American law. Visi- 
ble marks or objects at the ends of the lines 
drawn in surveys of land, showing tlie 
courses and distances. Burrill. 


BOUNDS. In the English law of mines, 
the trespass committed by a person who ex- 
cavates minerals under-ground beyond tha 
boundary of his land is called “ working out 
of bounds.” 


BOUNTY. A gratuity, or an unusual or 
additional benefit conferred upon, or com- 
pensation paid to, a class of persons. 

A preinium given or offered to induce men 


Mi 


BOUNTY 150 BRANDING 


to enlist into the public service. Theterm] BOUWERYE. Dutch. Inold New York 
is applicable only to the payment made to the | Jaw. A farm; a farm on which the farmer's 
enlisted man, as the inducement for his sery- | family resided. 


ice, and not toa premium paid to the Tan ROUWMEERSTER. Dutch. In old New 
through whose intervention, and by whose > 
8 sana ; York law, A farmer. 
procurement, the recruit is obtained and 
mustered. 39 How. Pr. 488. BOVATA TERRA. As much land as 


It is not easy to discriminate between bounty, | ON@ Ox can cultivate. Said by some to be 
reward, and bonus. Theformer isthe appropriate | thirteen, by others eighteen, acres in extent. 
term, however, where the services or action of Skene; Spelman; Co. Lilt. Sa. 
many persons are desired, and each who acts upon 
the offer may entitle himself to the promised gra- 
tuity, without prejudice from or to the claims of 
others; while reward is more proper in the case 
of asingle service, which can be only once per- 


BOW-BHARER. An under-officer of 
the forest, whose duty it is to oversee and 
true inguisition make, as well of sworn men 
formed, and therefore will be earned only by the | 28 Unsworn, in every bailiwick of the forest; 
person or co-cperating porsons who succeed while | and of all manner of trespasses done, either 
others fail. Thus, bounties are offered to all who | to vert or venison, and eause thein to be pre- 


will onlist in the army or navy; to all who will | sented, without any concealment, in the next 
engage in certain fisheries which government de- 


sire to encourage; to all who kill dangerous beusts | court of attachment, ete. Cromp. Jur. 201. 


or noxious creatures, A reward is offcred for res- 
cuing a person from a wreck or fire; for detecting BOWYERS. Manufacturers of bows 


and arresting an offender; for finding alost chat- | aNd shafts. An ancient company of the city 
tel, of London. 

Bonus, as compared with bounty, suggests the 
idea of a gratuity to induce a money transaction BOYCCTT. In criminal law. <A con- 
between individuals; a percentage or gift, upona | spiracy formed and intended directly or in- 
joan or transfer of property, or a surrender of & | directly to prevent the carrying on of any 
a aed lawful business, or to injure the business of 

BOUNTY LANDS. Portions of the any one by wrongfully preventing those who 
public domain given to soldiers for military | would be customers from buying anything 
services, by way of bounty. from or employing the representatives of said 


business, by threats, intimidation, or other 
BOUNTY OF QUEEN ANNE. A / forcible means. 11 Va. Law J. 329. 
nime given to a royal charter, which was 
contirmed by 2 Anne, c. 11, whereby all the BOZERO. In Spanish law. An advo- 
revenue of first-fruits and tenths was vested | cate; one who pleads the causes of others, or 
in trustees, to form a perpetual fnnd for the | his own, before courts of justice, either as 
augmentation of poor ecclesiastical livings. plaintiff or defendant. 


aviation, BRACHIUM MARIS. An arm of the 
BOURG. In old French law. <Anas- | Sea. 


semblage of houses surrounded with walis; BRACINUM. <A brewing; the whole 
pfominied tows or vilage. quantity of ale brewed at one time, for which 

In old English law. A borough, 4 vil- | folsestor was paid in aome manors. Brecina, 
lage. a brew-house. 


BOURGEOIS. Inold French law. The BRAHMIN, BRAHMAN, or BRA- 


inhabitant of a bowrg, (g. v.) MIN. In Hindu law. A divine; a pricst; 
A person entitled tothe privileges of a mu- | the first Hindu caste. 
nicipal corporation; a burgess. 


BRANCH. A branch of a family stock 
BOURSE. Fr. An exchange; a stock- | is a group of persons, related among them- 
exchange. selves by descent from a common ancestor, 


ROURSE DE COMMERCE. In the and matet to the main stock by the fact that 
a ; : that common aneestor descends from tha 
French law. An aggregation, sanctioned by ctelnal tanad it 
government, of merchants, captains of ves- ee eee 


acls, exchange agents, and courtiers, the BRAND. To stamp; to mark, either with 


two latter being nominated by the govern- a hot iron or with a stencil plate. 11 Hun, 
ment, ineach city which has a bourse. Brown. | 575, 


BOUSSOLE. In French marine law. A BRANDING, An ancient mode of pun- 
compass; the mariner's compass. ishment by inflicting a mark on an offender 


BRANKS 


with ahotiron. It is generally disused in 
civil law, but is a recognized punishment for 
some military offenses. 


BRANKS. Aninstrument formerly used 
in some parts of England for the correction 
of scolds; a scolding bridle. It inclosed the 
head and a sharp piece of iron entered the 
Tavuth and restrained the tongue. 


BRASIATOR. A maltster, a brewer. 
BRASIUM. Mall. 


BRAWL. The popular meanings of the 
words “brawls” and “tumults” are substan- 
tially the same and identical. They are cor- 
relative terms, the one employed to express 


the meaning of the other, and are so defined | 


by approved lexicographers. Legally, they 
Mean the same kind of disturbance to the 
public peace, produced by the same class of 
agents, and can be well comprehended to de- 
fing one and thesame offense. 42 N. H. 464. 


ing a disturbance, in a church, or church- 
yard, (4 Bil. Comm. 146; 4 Steph, Comm. 
243.) Mozley & Whitley. 


1 BREACH. 


or omission. 


In contracts. The violation or non-ful- 

| filraent of an obligation, contract, or duty. 

A continuing breach occurs where the 
alate of affairs, or the specific act, constitut- 
ing the breach, endures for a considerable 
period of time, or 
vals. 

A constructive breach of contract takes 
place when the party bound to perform dis- 


ables himself from performance by some act, | 


or declares, belore the time comes, that he 
will not perform. 

In pleading. This name is sometimes 
given to that part of the declaration which 
alleges the violation of the defendant’s prom- 
ise or duty, immediately preceding the ad 
damnum clause. 

BREACH OF CLOSE. The unlawful 
or unwarrantable entry on another person’s 
suil, land, or close. 3 Bi. Comm. 209, 


BREACH OF COVENANT. Thenon- 

performance of any covenant agreed to be 

performed, or the doing of any act covenant- 
ed-not to be done. Holthouse. 


BREACH OF DUTY. In a general 

sense, any Violation or omission of a legal or 
moral duty. More particularly, the neglect 

ov failure to fulfill in a Justand proper man- 


151 


Brawling is quarrelling or chiding, or creat- 


The breaking or violating of | 
[ a law, right, or duty, either by commission | 


is repealed at short inter- | 


BREAD ACTS 


ner the duties of an office or fiduciary em- 
ployment. 


BREACH OF POUND. The breaking 
any pound or place where cattle or goods dis- 
trained are deposited, in order to take them 
back. 3 Bl. Comm. 146. 


BREACH OF PRISON. The offense of 
actually and forcibly breaking a prison or 
gaol, with intent to escape. 4 Chit. BI. 180, 

| notes; 4 Steph. Comm. 255. The escape 
| from custody of a person lawfully arrested 
| on criminal process. 


BREACH OF PRIVILEGE. An act 
_ or default in violation of the privilege of 
either house of parliament, of congress, or of 
a state legislature. 


BREACH OF PROMISE. Violation of 
a promise; chielly used as an elliptical ex- 
pression for “breach of promise of marriage.” 


BREACH OF THE PEACH. 4 viola- 
tion of the public tranquillity and order. The 
offense of breaking or disturbing the pubiic 
peace by any riotous, forcible, or unlawful 
proceeding. 4 BI. Comm. 142, et seq.; 4 
Steph. Comm. 273, et seq. 

A construetive breach of Lhe peace is an 
unlawful act which, though wanting the ele 
| ments of actual violence or injury to any 
_ person, is yet inconsistent with the peaceable 
and orderly conduct of society. Various 
kinds of misdemeunors are included in this 
general designation, such as sending chal- 
lenges to fight, going armed in publie with- 
out lawful reason and in a threatening man- 
ner, etc. 

An apprehended breach of the peace ia 
caused by the conduct of a man who threat- 
ens another with violence or physical injury, 
or who goes about in public with dangerous 
and unusual weapons in a threatening or 
alarming manner, or who publishes an ag- 
. gravated libel upon another, ete. 


BREACH OF TRUST. <Any act done 
by a trustee contrary to the terms of his 
trust, or in excess of his authority and to the 
detriment of thetrust; or the wrongful omis- 
sion by a trustee of any act required of him 
by the terms of the trust. 

Also the wrongful misappropriation by a 
trustee of any fund or property which had 
been lawfully committed to him in a fiduciary 
character. 


BREAD ACTS. Laws providing for the 
sustenince of persons kept in prison for 
debt. 


H 


aa 


BREAKING 16 


BREAKING. Forcibly separating, part- 
ting, disintegrating, or piercing any solid sub- 
stance. In the law as to housebreaking and | 
burglary, ib means the tearing away or re-_ 
moval of any part of a house or of the locks, 
latches, or other fastenings intended to secure 
it, or otherwise exerting forge to guin an en- | 
trance, with the intent to commit a felony; 


or violently or forcibly breaking out of a | 
house, after having unlawiully entered it, in 
the attempt to escape. 


BREAKING A CASE. Theexpression 
by the judges of a court, to one another, of 
their views of a cuse, in order to ascertain 
how far they are agreed, and as preliminary 
to the formal delivery of their opinions. “We 
are brenking the case, that we may show 
What is In doubt with any of us.” Holt, C. 
J., addressing Dolbin, J., 1 Show. 423, 


BREAKING BULK. The offense com- 
mitted by a bailee (particularly a carrier) in 
opening or unpacking the chest, parcel, or 
case containing goods intrusted to his care, | 
and removing the goods and converting them 
to his own use. 


BREAKING DOORS. Forcibly remov- 
ing the fastenings of a house, so that a per- 
son may enter. 


BREAKING JAIL. The act of a prise 
oner in effecting his escape from a place of 
lawful confinement, Zseape, while denot- 
ing the offense of the prisoner in unlawfully 
leaving the jail, may also connote the fault 
or negligence of the sheriff or keeper, and 
hence is of wider significance than “break- 
ing jail” or “prison-breach.” ‘ 


BREAKING OF ARRESTMENT,. In 
Scotch law, The contempt of the law com- 
mitted by an arrestee who disregards the ar- 
restment used in his hands, and pays the sum 
or delivers the goods arrested to the debtor, 
The breaker is liable to the arrester in dam- 
ages. Sea ARRESTMENT, 


BREAST OF THE COURT. A meta- 
phorical expression, signifying the conscience, 
discretion, or recollection of the judge. Dur- 
ing the term of a court, the record is said fo 
remain “in the breast of the judges of the 
court and in their remembrance.” Co. Litt. 
2t0¢,; 3 Bl. Comm. 407. 


BREATH. In medical jurisprudence. 
The air expelled from the lungs at each ex- 
pixalion. 

BREDWITE. In Saxon and old English 
law. A fine, penalty, or amercement im- | 


2 BREVE 


posed for defaults in the assise of bread. 
Cowell. 


BREHON. In old Irish law, A fudge. 
1 Bl. Comm. 100. Brehons, (breitheamhuin, | 
judges. 


BRETION LAW. The name given to 


_ the ancient system of law of Ireland as it ex- 
| isted at thetime of its conquest by Henry U.; 


and derived from the title of the judges, who 
were denominated “Brehons.” 


BRENAGIUM. <A payment in bran, 
which tenants anciently made to feed their 
lords’ hounds. 


BREPHOTROPHI, In the civil law. 
Persons appointed to take care of houses des 
tined to receive foundlings. 


BRETHREN. This word, in a will, may 
include sisters, as well as brothers, of tha 
person indicated; it is not necessarily limited 
to the masculine gender. 1 Rich. Hq. 78. 


BRETTS AND SCOTTS, LAWS OF 
THE, <A code or system of laws in use 
among the Celtic tribes of Scotland down to 
the beginning of the fourteenth eentury, and 
then abolished by Kdward I, of England, 


BRETTWALDA. In Saxon law. Tho 
ruler of the Saxon heptarehy, 
BREVE. L. Lat. Awrit. Anoriginal 


writ. A writ or precept of the king issuing 
out of his courts. 

A writ by which a person is summoned or 
attached to answer an action, complaint, ete., 
or whereby anything is commanded to be 
done in the courts, in order to justice, ete. 
It is called “dreve,” from the brevity of it, 
and is addressed either to the defendant him- 
self, or to the chancellors, judges, sheriffs, 
or other officers. Skene. 


BREVE DE RECTO. A writ of right, 
or license for a person ejected out of an es- 
tale, to sue for the possession of it. 


BREVE INNOMINATUM. A _ writ 
making only a general complaint, without 
the details or particulars of the cause of ac- 
tion. 


Breve ita dicitur, quia rem da qua 
agitur, et intentionem petentis, paucis 
verbis breviter enarrat. A writ is so 
called because it briefly states, in few words, 
the matter in dispute, and the object of the 
party seeking relief. 2 Inst. 39. 


BREVE 


Breve judiciale debet sequi suum orig- 
inale, et accessorium suum principale. 
Jenk. Cent. 292. <A judicial writ ought to 
follow its original, and an accessory its prin- 
cipal. 


Breve judiciale non cadit pro defectu 
forme. Jenk. Cent. 43. <A judicial writ 
fails not through defect of form. 


BREVE NOMINATUM. A named 
writ. <A writ stating the circumstances or 
details of the cause of action, with the time, 
place, and demand, very particularly. 


BREVE ORIGINALE. An _ original 
writ; a writ which gave origin and com- 
mencement to a suit. 


BREVE PERQUIRERE. To purchase 
a writ or license of trial, in the king’s courts. 
by the plaintiff, qué breve perquisivit. 


BREVE TESTATUM. A written mem- 
orandum introduced to perpetuate the tenor 
of the conveyance and investiture of lands. 
2 Bl. Comm. 307. 


153 


In Scotch law. <A similar memorandum | 


made out at the time of the transfer, attested 
by the pares curiw and by the seal of the su- 
perior. Bell. 


BREVET. In military law. A com- 
mission by which an officer is promoted to 
the next higher rank, but without confer- 
ring a right to a corresponding increase of 
pay. 

In French law. A privilege or warrant 
granted by the government to a private per- 
son, aubhorizing him to take a special bene- 
fit or exercise an exclusive privilege. Thus 
a brevet d'invention is a patent for an inven- 
tion. 


BREVIA. Lat. 
breve, which sce. 


Writs. The plural of 


BREVIA ADVERSARIA. Adversary 
writs; writs brought by an adversary to re- 
cover land. 6 Coke, 67. 


BREVIA AMICABILIA. Amicable or 
friendly writs; writs brought by agreement 
or consent of the parties. 


BREVIA ANTICIPANTIA. Ab com- 
moulaw. Anticipating or preventive writs. 
Six were included in this category, viz.; Writ 
of mesne; warrantia charte,; monstrave- 
runt; audite querela,; curta claudenda; and 
ne tujuste vewes. 


BREVIADE CURSU. Writsof course. 
Formal writs issuing as of course. 


BREWER 


BREVIA FORMATA. Certain writs of 
approved and established form which were 
granted of course in actions te which they 
were applicable, and which could not be 
changed but by consent of the vreat council 
of the realm. Bract. fol. 4136. 


BREVIA JUDICLALIA. Judicial writs. 
Auxiliary writs issued from the court dur- 
ing the progress of an action, or in aid of 
the judgment. 


BREVIA MAGISTRALIA. Writs oc- 
casionally issued by the masters or clerks of 
chancery, the form of which was varied to 
suit the circumstances of each case. Bract. 
fol. 4156. 


BREVIA SELECTA. Choice or select- 
ed writs or processes. Often abbreviated to 
Brey. Sel. 


Brevia, tam originalia quam judicialia, 
patiuntur Anglica nomina. 10 Coke, 132. 
Writs, as well original as judicial, bear En- 
glish names. 


BREVIA TESTATA. The name of the 
short memoranda early used to show grants 
of lands, out of which the deeds now in use 
have grown. Jacob. 


BREVIARIUM ALARICIANUM, A 
compilation of Roman law made by order of 
Alarie II., king of the Visigoths, in Spain, 
and published for the use of his Roman sub- 
jects in the year 506, 


BREVIARIUM ANIANI. Another 
name for the Brevarium Alaricianum, (q. v.) 
Anian was the referendery or chancellor of 
Alaric, and was commanded by the latter to 
authenticate, by his signature, the copies of 
the breviary sent to the comites. Mackeld. 
Rom. Law, § 68. 


BREVIATE. A brief; brief statement, 
epitome, or abstract. A short statement of 
contents, accompanying a bill in parlia- 
ment. Holthouse. 


BREVIBUS ET ROTULIS LYBER- 
ANDIS. <A writ or mandate to a sheriff to 
deliver to his successor the county, and ap- 
purtenances, with the rolis, briefs, remem- 
brance, and all other things belonging to his 
office. Reg. Orig. 295. 


BREWER. One who manufactures fer- 


| mented liquors of any name or description, 


for sale, from malt, wholly or in part, or 
from any substitute therefor. Act July 13, 
1866, § 9, (14 St. at Large, 117.) 


ivi 


BRIBE 


BRIBE. Any valuable thing given or 
promised, or any preferment, advantage, 
privilege, or emolument, given or proiised 
corruptly and against the law, as an induce- 
tment to any person acting in an official or 
public capacity to violate or forbear from his 
duty, or to intproperly infinence his behavior 
in the performance of such duty. 

The term “bribe” signifies any money, 
goods, right in action, property, thing of 
value, or advantage, present or prospective, 


154 


or any promise or undertaking to give any, | 


asked, given, or accepted, with a corrupt in- 
tent to influence unlawfully the person to 
whom it is given, in his action, vote, or 
opinion, in any public or official capacity. 
Pen. Code Dak. § 774. 


BRIBERY. In criminal law. The re- 
ceiving or offering any undue reward by or 
to any person whomsoever, whose ordinary 
profession or business relates to the admin- 
istration of public justice, in order to influ- 
ence his behavior in office, and toincline him 
to uct contrary to his duty and the known 
rules of honesty and integrity. 1 Russ. 
Crimes, 154; 1 Hawk. P. C. 414; 3 Co. Inst. 
149; 29 Ark. 302. 

The term “bribery” now extends further, and 
includes the offense of giving a bribe to many 
other classes of officers; it applies both to the 
actor and receiver, and extends to voters, cabinet 
ministers, legislators, sheriffs, and other classes. 
2 Whart. Crim. Law, § 1858. 

The offense of taking any undue reward 
by a judge, juror, or other person concerned 
in the administration of justice, or by a pub- 
lic oficer, to inffuence his behavior in his 
office. 4 BI. Comm. 139, and note. 

Bribery is the giving or receiving any un- 
due reward to influence the behavior of the 
person receiving such reward in the discharge 
of his duty, in any office of government or of 
justice. Code Ga, 1882, § 4469. 


The crime of offering any undue reward or re- 


muncration to any public officer of the crown, or | 


other person intrusted with a publie duty, witha 
view to influence his behavior in the discharge of 
his duty. The taking such reward is as much 
uribery asthe offering it. It also sometimes signi- 
fies the taking or giving a reward for public eltice, 
The offense is not confined, as some have supposed, 
to judicial officers. Brown. 


BRIBERY AT HLECTIONS. The of- 
fense committed by one who gives or prom- 
ises or offers money or any valuable induce- 
ment to an elector, in order to corruptly 
induce the jatter to vote in a particular way 
or to abstain from voting, or a’ a reward to 
the voter for having voted in a particular 
way or abstained from voting. 


| 


BRIEF 


BRIBOUR., 
goods; a thief. 


BRICOLIS. An engine by which walla 
were beaten down. Blount. 


BRIDEW ELL. 
of correction. 


BRIDGE. A structure erected over a 
river, creek, stream, ditch, ravine, or other 
place, to facilitate the passage thereof; in- 
cluding by the term both arches and «lat- 
ments. 40 N.J. Law, 305. 

A building of stone or wood erected across 
a river, for the common ease and benefit of 
travelers. Jacob. 

Bridges are either public or private. Pub- 
lic bridges are such us form a part of the high- 
Way, common, according Lo their character as 
foot, horse, or carriage bridges, to the public 
generally, with or without toll, 2 East, 342. 

A private bridge is one erected by one or 
more private persons for their own use and 
convenience. 


BERIDGH-MASTERS. Persons chosen 
by the citizens, to have the care and super- 
vision of bridges, and having certain fees 
and profits belonging to their office, as in the 
case of London Bridge. 


BRIDLE ROAD. In the location of a 
private way laid out by the selectmen, and 
accepted by the town, a description of it asa 
“bridle road” does not confine the right of 
way toa particular class of animals or special 
mode of use. 16 Gray, 175. 


BRIEF. In general. A written docu- 
ment; a letter; a writing in the form ofa 
letter. A summary, abstract, or epitome. A 
condensed staLement of some larger docu 
ment, or of a series of papers, facts, or prop- 
ositious. 

An epitome or condensed summary of the 
facts and circumstances, or propositions of 
law, constituting the case proposed to be set 
up by either party to an action about to be 
tried or argued. 

In English practice. A document pre- 
pared by the attorney, and given to tlie bar- 
rister, before the trial of a cause, for the in- 
struction and guidance of the latter. It con- 
tains, in general, ail the information neces- 
sary to enable the barrister to successfully 
conduct their client’s case in court, such as a 
statement of the facts, a summary of the 
pleadings, the names of the witnesses, and 


One that pilfers other men 3 


In England. A house 


'an outline of the evidence expected from 


them, and any suggestions arising out of the 
peculiarities of the case. 


BRIEF 


In American practice. A written or 
printed document, prepared by counsel to 
serve as the basis for an argument upon a 
cause in an appellate court, and usually “el 
for the information of the court. It embod- 
ies the points of law which the counsel de- 
sires toestablish, together with the arguments 
and authorities upon which he rests his con- 
tention. 

A brief, within a rule of court requiring counsel | 
tofurnish briefs, before argument, implics some 
kind of statement of the casc for the information 
of the court. 43 Ind. 356. 

In Scotch law. Brief is used in the 
sense of “writ,” and this seems to be the 
sense in which the word is used in very many 
of the ancient writers. 

In eeclesiastical law. 
gealed with wax. 


A papal rescript | 
See But. 


BRIB? A L’EVESQUE. A writ to the 
bishop which, in guare impedit, shall go to 
remove an incumbent, unless be recover or 
be presented pendente lite. 1 Keb. 386. 


BRIEF OF TITLE. In practice. A 
methodical epitome of all the patents, convey- 
ances, incumbrances, liens, court proceed- 
Ings, and other matters affecting the title to 
acertain portion of real estate. 


BRIEF OUT OF THE CHANCERY. 
Jn Scotch law. A writ issued in the name of 
the sovereign in the election of tutors to 
minors, the cognoscing of lunatics or of 
idiots, and the ascertaining the widow’s 
terce; and sometimes in dividing the proper- 


ty belonging to heirs-portioners. In these 
cases only brieves are now in use. ell, 


BRIEF, PAPAL. In ecclesiastical law. 
The pope's letter upon matters of discipline. 


BRIEVE. An Scotch law. <A writ. 1 
Kames, Eq. 146. 


BRIGA. In old European law. Strife, 
contention, litigation, controversy. 


BRIGANDINE. <A coat of mail or an- 
cient armour, consisting of numerous jointed 
scale-like plates, very pliant and easy for the 
body, mentioned in4 & 5 P.& M. c. 2. 


BRIGBOTE. In Saxon and old English 
law. A tribute or contribution towards the 
repairing of bridges. 

BRINGING MOWEY INTO COURT. 
The act of depositing money in the custody 
of a court or of its clerk or marshal, for the 


purpose of satisfying a dvbt or duty, or to | 


await the result of an interpleader. 


155 


BROKER 


| BRIS. In French maritime law. Liter- 
ally, breaking; wreck. Distinguished from 
| naufrage, (q. 0.) 


BRISTOL BARGAIN. In English law. 

A contract by which A. lends B. £1,009 on 
good security, and it is agreed that £509, to- 
gether with interest, shall be paid at a lime 
stated; and, as to the other £500, that B., in 

| consideration thereof, shall pay to A. £100 
per anuum for seven years. Wharton. 


BRITISH COLUMBIA. The territory 
on the north-west coast of North America, 
once known by the designation oi “New Cal- 
edonia.” Its government is provided for by 
21 & 22 Vict. c. 99, Vancouver Island is 
united toit by the 29 & 30 Vict. c. 67. See 
33 & 34 Vict. c. 66, 


BROCAGE. The wages, commission, or 
pay of a broker, (also called “brokerage.” ) 
Also the avocation or business of a broker. 


BROCARIUS, BROCATOR. In old 
Engiish and Seotch law. A broker; a mid- 
dleman between buyer and seller; the agent 
of both transacting parties. Bell; Cowell. 


BROCHLLA. In old English law. A 
wood, a thicket or covert of bushes and brush- 
wood. Cowell; Blount. 


BROEEN STOWAGE. In maritime 
law. That spacein asbip whichis not filled 
by her cargo. 


BROKER. An agent employed to make 
bargains and contracts between obher per- 

sons, in matters of trade, commerce, or nay- 
| igation, for a compensation commonly called 
“brokerage.” Story, Ag. § 28. 

Those who are engaged for others in the 
negotiation of contracts relalive to property, 
with the custody of which they have no con- 
cern. Paley, Prin. & Ag. 13. 

The broker or intermediary is he who is 
employed to negotiate a matter between two 
parties, and who, for that reason, is consid- 
| ered as the mandatary of beth. Civil Code 
La. art. 3016. 

One whose business is to negotiate pur- 
chases or sales of stocks, exchange, bullion, 
coined money, bank-notes, promissory noles, 
or other securities, for himself or for others. 
Ordinarily, the term “broker” is applied to 
one acting for others; but the part of the 
definition which speaks of purchases and 
sales for himself is equally importani as that 
which speaks of sales and purchases for oth- 
ers. 91 U.S. 710. 
| A broker is a mere negotiator between 


H 


BROKER 


ther parties, and does nat act in his own 
name, but in the name of thoss who employ 
him. 650 Ind. 204. 

Brokers are persons whose business it is 
to bring buyer and seller together; they need 
have nothing to do with negotiating the bar- 
gain. 68 Pa. St. 42. 

The difference between a factor or commission 
merchant and a broker is this: A factor may buy 
and sellin his own name, end be has the goodsin 
his possession; while a broker, as such, cannot or- 
dinarily buy or sell in his own name, and has no 
possession of the goods sold. 23 Wall. 321, 330. 

The legal distinction between a broker and a 
factor is that the factoris intrusted with the prop- 
erty the subject of the agency; the broker is only 
employed to make a bargain in relation toit. 650 
Ala. 154, 156. 

Brokers are of many kinds, the most im- 
portant being enumerated and defined as 
follows: 

Exchange brokers, who negotiate for- 
eign bills of exchange. 


Insurance brokers, who procure insur- 
ances for those who employ them and nego- 
tiate between the party seeking insurance 
and the companies or their agents. 


Merchandise brokers, who buy and sell 
goods and negotiate between buyer and sell- 
er, but without having the custody of the 
property. 

Note brokers, who negotiate the discount 
or sale of commercial paper. 


Pawnbrokers, who lend money on goods 
deposited with them in pledge, taking high 
rates of interest. 

Real-estate brokers, who procure the 
purchase or sale of land, acting as interme- 
diary between vendor and purchaser to bring 
them together and arrange terms; and who 
negotiate loans on real-estate security, man- 
age and lease estates, etc. 


Ship-brokers, who transact business be- 
tween the owners of ships and freighters or 
charterers, and negotiate the sale of vessels. 


Stock-brokers, who are employed to buy 
and sell for their principals all kinds of 
stocks, corporation bonds, debentures, shares 
in companies, government securities, munic- 
ipal bonds, ete. 


BROKERAGE. The wages or cominis- 
sions of a broker; also, his business or occu- 
pation, 


BROSSUS. Bruised, or injured with 
blows, wounds, or othercasualty. Cowell. 


BROTHEL, <A bawdy-house; a house of 
{ll fame; a common habitation of prostitutes. 


156 


| ital, with the intention, by means of allur- 


BUBLLE ACT 


BROTHER. One person is a brother “of 
the whole blood” to another, the former be- 
ing a male, when both are born from the 
same father and mother. He is a brother 
“of the half blood” to that other (or half 
brother) when the two are born to the same 
father by different mothers or by the same 
mother to different fathers. 


In the civil law, the following distinctious are 
observed:” Two brothers who descend from the 
same father, but by different mothers, are called 
“consanguine” brothers. If they have the same 
mother, but are begotten by different fathers, they 
are called “uterine” brothers. If they have both 
the same father and mother, they are denominated 
brothers “germane. ” 


BROTHER-IN-LAW. A wife's broth- 
er or a sister's husband. There is not any 
relationship, but only affinity, between broth. 
ers-in-law. 


BRUARIUM. In old English law. 4 
heath ground; ground where heath grows. 
Spelman. 


BRUGBOTE. See Briapore, 


BRUILLUS. In old English law. A 
wood or grove; athicket or cluinp of trees 
in a park or forest. Cowell. 


BRUISE. In medical jurisprudence, A 
contusion; an injury upon tlie iesh of a per- 
son with a blunt or heavy instrument, with 
out solution of continuity, or without break- 
ing the skin. 


BRUKBARN. In old Swedish law. 
The child of a woman conceiving after a rape, 
which was made legitimate. Literally, the 
child of a struggle. Burrill. ‘ 


BRUTUM FULMEN. Anempiy noise; 
an empty threat. 


BUBBLE. An extravagant or unsub- 
stantial project for extensive operations in 
business or commerce, generally founded on 
a ficti.ious ur exaggerated prospectus, to en- 
snare unwary investors. Companies formed 
on such a basis or for such purposes are 
called “bubble companies.” The term is 
chiefly used in England. 


BUBBLE ACT. The statute 6 Geo. Le, 
18, “for restraining several extravagant and 
unwarrantable practices herein mentioned,” 
was so called. It prescribed penalties for the 
formation of companies with little or no cap- 


ing advertisements, of obtaining money from 
the public by the sale of shares. Such un- 
dertakings were then commonly called “bab 
bles.” This legislation was prompted by the 


BUCKSTALL 


collapse of the “South Sea Project,” which, 
as Blackstone says, “had beggared half the 
nation.” It was mostly repealed by the stat- 
ute 6 Geo. 1V. ¢. 91. 


BUCXSTALL. A toil totakedeer. 4 Inst. 
806. 


BUDGET. A name given in England to | 


the statement annually presented to parlia- 


157 


ment by the chancellor of the exchequer, con- | 


taining the estimates of the national revenue 
aud expenditure. 


BUGGERY. Acarnal copulation against 
nature; and this is either by the confusion of 
species,—that is to say, a man or a woman 
with a brute beast,—or of sexes, as a man 
with a man, or man unnaturally with a wo- 
man. 3 Inst. 58; 12 Coke, 36. 


BUILDING, A structure or edifice erect- 
ed by the hand of man, composed of natural 
materials, as stone or woou, and intended for 
use Or convenience. 


BUILDING LEASE, A lease of land 
for a long term of years, usually 99, ata rent 
called a “ground rent,” the lessee coyenant- 
ing to ercet certain edifices thereon according 
to specification, and to maintain the same, 
éte., during the term. 


BUILDING SOCIETY, An associa- 
tion in which the subscriptions of the mem- 
bers form a capital stock or fund out of which 
advances may be made to members desiring 
them, on mortgage security. 


BUL. In theancient Hebrew chronology, 
the eighth month of the ecclesiastical, and the 
second of the civil, year. It has since been 
called “Dfarshevan,” and answers to our Oc- 
tober. 


BULK, Unbroken packages. Merchan- 
dise which is neither counted, weighed, nor 
measured, : 

Bulk is said of that which is neither count- 
ed, weighed, nor measured. A sale by the 
bulk is the sale of a quantity such as it is, 
without measuring, counting, or weighing. 
Civil Code La. art. 3556, par. 6. 


BULL. In ecelesiastical law. An in- 
strument granted by the pope of Rome, and 
sealed wilh a seal of lead, containing some 
decree, commandment, or other public act, 
emanating from the pontiff, Bull, in this 
sense, corresponds with edict or letters patent 
from other governments. Cowell; 4 Bl. 
Comm. 110; 4 Steph. Comm. 177, 179. 

This is also a cant term of the stock Ex- 


2 


BURDEN OF PROOF 


change, meaning one who speculates for arise 
in the market. 


BULLA. A seal used by the Roman em- 
perors, during the lower empire; and which 
was of four kinds,—gold, silver, wax, and 


‘lead. 


BULLETIN. An officially published no- 
tice or announcement concerning the progress 
of mattersof publicimportance. In Il'rance, 
the registry of the laws. 


BULLETIN DES LOIS. In Franee, 
the official sheet which publishes the laws 
and decrees; this publication constitutes the 
promulgation of the law or decree. 


BULLION. Gold and silver intended to 
be coined. The term is usually applied to a 
quantity of these metals ready for the mint, 
but as yet lying in bars, plates, lumps, or 
other masses; but it may also inelude orna- 
ments or dishes of gold and silver, or foreign 
eoins not current as money, when intended 
to be descriptive of its adaptability to be 
coined, and not of other purposes to which it 
may be put. 


BULLION FUND. A fund of public 
money maintained in connection with the 
mints, for the purpose of purchasing precious 
metals for coinage. 


BUM-BAILI?F. A person employed to 
dun one for a debt; a bailiff employed to ar- 
rest a debtor. Probably a vulgar corruption 


| of “bound-bailiff,” (q. 0.) 


BUNDA. Inold Englishlaw. A bound, 
boundary, border, or limit, (terménus, limes.) 


BUNGALOW. 
East Indies. 


BUCY. In maritime law. A piece of 
wood or cork, or a barrel, raft, or other thing, 
made secure and floating upon a stream or 
bay, intended as a guide and warning to 
mariners, by marking a spot where the water 
is shallow, or where there is a reef or other 
danger to navigation, or to mark the course 
of a devious channel. 


BURDEN OF PROOF. (Lat. ents pro- 
bandi.) In the law of evidence. The neces- 
sity or duty of affirmatively proving a fact 
or facts in dispute on an issue raised between 
the parties in a cause. 


A country-house in the 


The term “burden of proof” is not to be 
confused with “prima facie case.” When 
the party upon whom the burden of proof 
rests hus made out a prima facie case, this 
will, in general, suffice to shift the burden. 


K 


i 


BUREAU e 
In other words, the former expression de- 
notes the necessity of establishing the latter. 


BUREAU, An office for the transaction 
of business. A name given to the several 
departments of the executive or administra- 
tive branch of government, or to their larger 
subdivisions. 


BUREAUCRACY. A system in which 
the business of government is carried on in 
departments, each under the control of a 
ehief, in contradistinction from a system in 
which the officers of government have a co- 
ordinate authority. 


BURG, BURGH. A term anciently ap- 
plied to a castle or fortified place; a borough, 
(g- v-) Spelman. 


BURGAGE. A name anciently given to 
a idwelling-house in a borough town. 
Blount. 


BURGAGE-HOLDING. A tenure by 
which lands in royal boroughs in Scotland 
were held of thesovereign. The service was 
watching and warding, and was done by the 
burgesses within the territory of the bor- 
ough, whether expressed in the charter or not. 


BURGAGEH-THNURE, In English law. 
One of the three species of free socage hold- 
ings; a tenure whereby houses and lands 
which were formerly the site of houses, inan 
ancient borough, are held of some lord by a 
certain rent. There are a great many cus- 
toms affecting these tenures, the most re- 
markable of which is the custom of Borough 
English. See Litt. § 162; 2 Bl. Comm. 82. 


BURGATOR. One who breaks into 
houses or inclosed places, as distinguished 
from one who committed robbery in the open 
country. Spehnan. 


BURGBOTE. In old English law. A 
term applied to a contribution towards the 
repair of castles or walls of defense, or of a 
borough. 


BURGENSES. In old Engtish Jaw. In- 
habitants ofa burgus or borough; burgesses. 
Fleta, lib. 5, c. 6, § 10. 


BURGERISTH. A word used in Domes- 
day, signifying # breach of the peace in a 
town. Jacok, 


BURGESS. In English law. An in- 
habitant or freeman of a borough or town; a 
person duly and legally admitted a member 
of a municipal corporation. Spelman; 8 
Steph. Comm. 188, 189. 

A magistrate of a borough. 


331 


prounk. 


5 


8 


BURGLARY 


An elector or voter; a person legally qual- 
ifled to vote at elections. The word in this. 
sense is particularly defined by the statute 5. 
& 6 Win. LV. c. 76, §§ 9,13. 3Steph. Comm. 
192. 

A representative of a borough or town, in 
parliament. Co. Lilt. 109¢; 1 Bl. Comm. 
174. 

In American law. The chief executive 
officer of a borough, bearing the same rela- 
tion to its government and affairs that the 
mayor does to these of a city. Sc used in 
Pennsylvania, 


BURGESS ROLL. A roll, required by 
the St.5 & 6 Wm. IV. ¢. 76, to be kept in 
corporate towns or boroughs, of the names 
of burgesses entitled to certain new rights 
conferred by that act. 


BUERGH-BRECHE. A fine imposed on 
the community of a town, for a breach of the 
peace, etc. 


BURGH ENGLISH. See Borovar 
ENGLISH. 


BURGH ENGLOYS. 
glish, (g. v.) 

BURGHMAILS. Yearly payments to 
the crown of Sevtland, introduced by Mal 


colm IlI., and resembling the English fee- 
farm rents. 


BURGHMOTE. In Saxonlaw. A 
court of justice held semi-annually by the 
bishop or lord in a burg, which the thanea 
were bound to attend without summons, 


Borough Ene 


BURGLAR. One who commits burglary. 
One who breaks into a dwelling-house in the 
night-time with intent to commit a felony. 


BURGLARIOUSLY. In pleading, A 
technical word whieh must be introduced into 
an indictment for burglary at common law. 


BURGLARITER. L. Lat. (Burgian- 
cusly.} In old criminal pleading. A neces- 
sary word in indictments for burglary. 


BURGLARY. In criminal law. The 
breaking and entering the house of another 
in the night-time, with intent to commit a 
felony therein, whether the felony be actual- 
ly committed or not. 38 Inst. 63; 1 Hale, P. 
C. 549; 1 Hawk. P. C. c. 88, § 1. 

Burglary is the breaking and entering the dwell- 
ing-bouse of another, in the night-time, with in- 
tent to commitafelony. 29 Ind. 80; 1 N. J. Law, 
441; 9 Ired. 463; 1 Dev. 253; 7 Mass. 247. 

The common-law definition has been much 
modified by statute in several of the states. 


BURGOMASTER 159 


Por example: “Every person who enters any 
house, room, apartment, tenement, shop, 
warehouse, store, mill, barn, stable, out- 
house, or other building, tent, vessel, or rail- 
road car, with intent to commit grand or 
petit larceny, or any felony, is guilty of burg- 
lary.” Pen. Code Cal, § 459, 


BURGOMASTER. The title given in 
Germany to the chief executive officer of a 
borough, town, or city; corresponding to our 
“mayor.” 


BURGUNDIAN LAW. See Lex Bur- 
GUNDIONUM. 


BURGWHAR. A burgess, (¢. 0.) 


BURIAL. Sepulture; the act of interring 
dead human bodies. 


BURKISM, (from the name of its first | 
perpetrator.) The practice of killing persons | 
for the purpose of selling their bodies for dis- | 
section. 


BURLAW COURTS. In Scotch law. 
Courts consisting of neighbors selected by 
common consent to act as judges in detcre | 
mining disputes between neighbor and neigh- 
bor. 


BURLAWS. InSeotchlaw. Laws made 
by neighbors elected by common consent in 
the burlaw courts. Skene. 


BURN. Toconsume with fire. The verb 
“to burn,” in an indictment for arson, is to | 
be taken in its common meaning of “to con- 
gpume with fire.” 17 Ga. 180, 

Burning and setting fire to ure not legal 
synonyms. 65 Grat. 664. 


BURNING FLUID. As used in policies | 
of insurance, this term does not mean any 
fluid which will burn, but it means a recog- 
nized article of commerce, called by that 
name, und whichis a different artivle from 
naphtha or kerosene. 4 Fed. Rep. 766; 24 
Hun, 569. 


BURNING IN THE HAND. In old 
English criminal law, laymen, upon being 
accorded the benetit of clergy, were burned 
with a hot iron in the brawn of the left 
thumb, in order that, being thus marked, 
they could not again claim their clergy. 4 
Bl. Comm. 367. 


BURROCHIUM. A burroech, dam, or 
sinall wear over a river, where traps are laid 
for the taking of fish. Cowell. 


BURROWMEALIS. InScotchlaw. A 
term used to designate the rents paid into the 


law. Seamen or marines. 


| generally. 


BUSONES CUMITATUS 


King’s private treasury by the burgesses or 
inhabitants of a borough. 


BURSA. A purse. 
BURSAR. A treasurer of a college. 


BURSARIA. Theexchequer of collegiata 
or canventual bodies; or the place of receiv- 
ing, paying, and accounting by the bursars. 
Also stipendiary scholars, who live upon the 
burse, fund, or joint-stuck of the college. 


BURYING ALIVE. In English law. 
The ancient punishment of sodomites, and 
those who contracted with Jews. Fleta, Jib. 
1, c. 27, § 3. 


BURYING-GROUND. <A place set 
apart for the interment of the dead; a ceme- 
tery. 


BUSCARL. In Saxon and old English 
Spelman. 


BUSHEL. A dry measure, containing 
four pecks, eight gallons, or thirty-two 
quarts. But the dimensions of a bushel, and 
the weight of a bushel of grain, ete., vary in 
the different states in consequence of statu- 
tory enactinents. 


EUSINESS. This word embraces avery- 
thing about whicha person can be employed. 
23 N. Y. 242, 244. 

That which occupies the time, attention, 
and labor of men for the purpose of a liveli- 
hood or profit. The doing of a single act 


| pertaining to a particular business will not 


be considered engaging in or earrying on the 
business; yet a series of such acts would be 
so considered. 50 Ala. 180. See, also, 2 
Allen, 395; 38 N. J. Law, 287. 

Labor, business, and work are not synonyms. 
Labor may be business, but it is not necessurily 80; 
and business is net always labor. Making an 
agreement for the sale of a chattel is not within a 
Prohibition of labor upen Sunday, though it is (if 
by a merchant in his calling) within a prohibition 
upon business. 2 Ohio St. 337. 


BUSINESS HOURS. Those bonrs of 
the day during which, in a given community, 
commercial, banking, professional, public, 
or other kinds of business are ordinarily ecar- 
ried on. 


This phraseis declared to mean not the tims 
during which a principal requires an employee's 
services, but the business hours of the community 
18 Minn, 183, (Gil. 119.} 


BUSONES COMITATUS. In old En 
glish law. The barous of a county 


BUSSA 


BUSSA. A term used in the old English 
taw, to designate a large and clumsily con- 
structed ship. 


BUTLERAGE. A privilege formerly ale 
lowed to the king’s butler, to take a certain 
part of every cask of wine imported by an 
alien, 


BUTLER’S ORDINANCH. In English 
law. <A law for the heir to punish waste in 
the life of the ancestor, “Though it be on 
record in the parliament book of Edward L., 
yet it never was a statute, nor ever so re- 
ceived; but only some constitution of the 
king’s council, or lords in parliament, which 
never obtained the strength or force of an act 
of parliament.” Hale, Hist. Eng. Law, p. 18. 


BUTT. A measure of liquid capacity, 
equal to one hundred and eight gallons; also 
& measure of land. 


BUTTALS. The bounding lines of land 
at the end; abuitals, which see. 


BUTTED AND BOUNDED. A phrase 
sometimes used in conveyancing, to intro- 


duce the bouridaries of lands. See Burrs 
anD Bounns. 
BUTTS. In old English law. Short 


pieces of land left unplowed at the ends of 
fields, where the plow was turned about, 
(otherwise called “headlands,”) as sidelings 
were similar unplowed pieces on the sides. 
Burrill. 

Also a place where bowmen meet to shoot 
at a mark, 


BUTTS AWD BOUNDS, A phrase used 
in conveyancing, to describe the end lines or 
elreumscribing lines of a certain piece of 
land. The phrase “metes and bounds” has 
the same meaning. 


BUTTY. A local term in the north of 
England, for the associate or deputy of an- 
other; also of things used in common. 


BUY. To acquire the ownership of prop- 
erty by giving an accepted price ur considera- 
tion therefor; or by agreeing to do so; to ac- 
quire by the payment of a price or value; to 
purchase, Welster. 


BUY IN. To purchase, at publie sale, 
property which is one’s own or which one has 
caused or procured to be sold. 


BUYER. One who buys; a purchaser, 
particularly of chattels. 


BUYING TITLES. The purchase of 
the rights or claims toreal estate of a person 


160 


BY-LAWS 


who is not in possession of the land or is dis- 


seised. Void, and an offense, at common 
law. 
BY. This word, when descriptively nsed 


in a grant, does not mean “in immediate con- 
tact with,” but “near” to, tle object to 
which it relates; and “near” is a relative 
term, meaning, when used in land patents, 
very unequal and different distances. 6 Gill, 
121; 48N. H, 491. 

A contract to complete work by a certain 
time, means that it shall be done before that 
time. 3 Pen. & W. 48. 


By an acquittance for the last pay- 
ment all other arrearages are discharged. 
Noy, 40. 


BY-BIDDING. In the law relating to 
sales by auction, this term is equivalent to 
“pulling.” The practice consists in making 
fictitious bids for the property, under a se- 
eret arrangement with the owner or aue- 
tioneer, for the purpose of misleading and 
stimulating other persons who are bidding in 
good faith. 


BY BILL, BY BILL WITHOUT 
WRIT. Inpractice. Terms anciently used 
to designate actions commenced by original 
bill, as distinguished from those commenced 
by original wrié, and applied in modern prac- 
tice to suits commenced by capias ud respon- 
dendum. 1 Arch. Pr. pp. 2,337; 5 Hill, 218, 


BY ESTIMATION. In conveyancing. 
A term used to indicate that the quantity of 
land ag stated is estimated only, not exactly 
measured; has the same meaning and effect 
as the phrase “more or less.” 


BY GOD AND MY COUNTRY. In old 
English criminal practice. The established 
formula of reply by a prisoner, when ar- 
raigned at the bar, to the question, “Culprit, 
how wilt thou be tried?” 


BY-LAWS. Regulations, ordinances, or 
rules enacted by a private corporation for its 
own povernment. 


A by-law is a rule or law of a corporation, for 
ita government, and is a legislative act, and the 
solemnities and sanction required by the charter 
must be observed. A resolution is not necessarily 
a by-law, though a by-law may be in the form of a 
resolution, 7 Barb. 508. 

“That the reasonableness of a by-law of a corpo- 
ration is a question of law, and notof fact, has al- 
ways been the established rule; but in the ease of 
State v. Overton, 24 N. J. Law, 435, a distinction 
was taken in this respect between a by-law and a 
regulation, the validity of the former being a ju- 
dicial question, while the latter was regarded as a 
matter in pais. But although, in one of the opin 


BY-LAWS 


fons read in the case referred to, the view was 
clearly expressed that the reasonableness of a cor- 
porate regulation was properly for the considera- 
tion of the jury, and not of the court, yet it was 
nevertheless stated that the point was not involved 
inthe controversy then to be decided. There is 
no doubt that the rule thus intimated is in opposi- 
tion to recent American authorities. Nor have I 
been able to find in the English books any such 
distinction as that above stated between a by-law 
and a regulation of a corporation.” 84 N. J. Law, 
135. 

The word has also been used to designate 
the local laws or municipal statutes of a city 
ortown. But of late the tendency is to em- 
ploy the word “ordinance” exclusively for 
this class of enactments, reserving “by-law” 
for the rules adopted by private corporations. 


BY LAW MEN. InEnglish law. The 
chief men of a town, representing the in- 
habitants. 


BY-ROAD. Thestatute law of New Jer- 
sey recognizes three different kinds of roads: 
AM.DICT.LAW—I11 


161 


BYE-LIL-WUFFA 


A pubiie road, a private road, and a by- 
road, A by-road is a road used by the in- 
habitants, and recognized by statute, but not 
laid out. Such roads are often called “drift- 
ways.” They are roads of necessity in new- 
ly-settled countries. 29 N. J. Law, 516. 
See, also, Id. 68. 

An obscure or neighborhood road in its 
earlier existence, not used fo any great ex- 
tent by the public, yet so far a publie road 
that the publie have of right free access to it 
atall times. 34 .N. J. Law, 89. 


BY THE BY. Incidentally; without 
new process. A term used in former En- 
glish practice to denote the method of filinga 
declaration against a defendant who was al- 
ready in the custody of the court at the suié 
of a different plaintiff or of the same plaintiff 
in another cause, 


BYE-BIL-WUFFA. In Hindulaw. A 
deed of mortgage or conditional sale. 


a 


162 


CALINET COUNCLL 


C. 


Cc. Tho tnitial letter of the word “Coder,” 
used by some writers in ciling the Code of 
Justinian, Tayl. Civil Law, 24. 

It was also the letter inscribed on the bal- 
lots by which, among the Romans, jurors 
voted to condemn an accused party. Jt was 
the initial letter of condemno, I condemn. 
Tayl. Civil Law, 192. 

C, as the third letter of the alphabet, is 
use] as a numeral, ip like manner with that 
use of A and 3, (gq. 2.) 

The letter is also used to designate the 
third of a series of propositions, sections, 
etc., as A, B, aud the others are used as 
numerals, 

It is used as an abbreviation of many 
words of which it is the initial letter; such 
as cases, civil, circuit, code, common, court, 
criminal, chancellor, crown. 


Cc. A.V. An abbreviation for curia ad- 
visari vuli, the court will be advised, will 
consider, will deliberate. 


GC. B. In reports and legal documents, an 
abbreviation for common bench. Also an 
abbreviation for chief baron. 


Cc. C. Various terms cr phrases may be 
denoted by this abbreviation; such as circuit 
court, (or city or county court;) criminal 
cases, (or crown or civil or chancery cases;) 
civil eode; chisf commissioner; and the re- 
turn of cepi corpus. 


G. Cc. P. An ahbreviation for Code of 
Civil Procedure; also for court of common 
pleas. 


C.J. An abbreviation for chief justice; 
also for circuit judge. 


C.L. <An abbreviation for civil law. 


Cc. L. P. Common law procedure, in refs 
erence to the English acts so entitled. 


C.0.D. “Collect on delivery.” These 
letters are not cabalistic, but have a deter- 
minate meaning. They import the carrier’s 
liability to return to the consignor either the 
goods or the charges. 59 Ind. 263. 


Cc. P. An abbreviation for common pleas. 


C.R. An abbreviation for curia reyis; 
also for chancery reports. 


C.T. A. An abbreviation for cum testa 
mento annexo, in describing a species of ad- 
Ministration. 


CABAL. Asmall association for the pur- 
pose of intrigue; an intrigue. ‘This name 
was given to that ministry in the reign of 
Charles II. formed by Clifford, Asiley, 
Buckingham, Arlington, and Lauderdale, 
who concerted a scheme for the restoration 
of popery. The initials uf these ive names 
form ihe word “cabal;” hence the appella- 
tion. Hume, Hist. Eng. ix. 69. 


CABALIST. In French commercial law. 
A factor or broker. 


CABALLARIA. Pertaining to a horse. 
It was a feudal tenure of lands, the tenant 
furnishing a horseman suitably equipped in 
time of war, or when the lord had occasion 
for his service. 


CABALLERIA. In Spanish law. An 
allotment of land acquired by conquest, to a 
horse soldier, it was a strip one hundred 
feet wide by two hundred feet deep. The 
term has been sometimes used in those parts 
of the United States which were derived from 


Spain. See 12 Pet. 444, note. 
CABALLERO. InSpanishlaw. A 
knight. So called on aecount of its being 


more honorable to go on horseback (& cabatlo) 
than on any other beast. 


CABINET. ‘The advisory board or coun- 
cil of a king or other chiefexecutive. In the 
government of the United States the cabinet 
is composed of the secreiary of state, the sec- 
retary of the treasury, the sceretary of the 
interior, the secretary of war, the secretary 
of the navy, the secretary of agriculture, the 
attorney general, and the postmaster gen- 
eral. 

The select or secret council of a prince or 
executive government; 80 called from the 
apartment in which it was originally held. 
Webster. 


CABINET COUNCIL. In English law. 
A private and confidential assembly of the 
most considerable ministers of state, to con- 
cert measures for the administration of pub 
lie affairs; first established by Charles I, 
Wharton. 


CABLE 


CABLE. The great rope of a ship, to 
which the anchor is fastened. 


CABLISH. Brush-wood, or more prop- 
erly windfall-wood. 


CACHEPOLUS, or CACHERELLAS. 
An inferior bailiff, or catehpoll. Jacob. 


CACHET, LETTRES D3. Letters is- 
sued and signed by the kings of France, and 
cuuntersigned by a secretary of state, author- 
luing the imprisonment of a person. Albol- 
ished during the revolution of 1789. 


CACICAZGOS. In Spanish-American 
Jaw. Property entailed on the cactques, or 
heads of [Indian villages, and their descend- 
ants. Schm. Civil Law, 309. 


CADASTRE. In spanish law. An of- 
ficial statement of the quantity and value of 
teal property in any district, made for the 
purpose uf justly apportioning the taxes pay- 
able on such property. 12 Pet. 428, note. 


CADASTU. In French law. An official 
statement of the quantity and value of realty 


made for purposes of taxation; same as ca- | 


dastre, (g. v.) 


CADERE. Lat. 
Asin the phrases eadit actio, (or breve, ) tlie 
action (or writ) fails; cadit assisa, the as- 
sise abates; eadit quastiv, the discussion 
ends, there is no room for further argument. 

To be changed; to be turned into. Cadit 
assisa in juratum, the assise 1s changed into 
a jury. 


CADET. In the United States laws, 
students in the military academy at West 
Point are styled “cadets;” students in the 
naval academy at Annapolis, “cadet midship- 
men.” Rey. St. §§ 1309, 1512. 

In England. The younger son of a gen- 
tleman; particularly applied ta a volunteer 
in the army, waiting for some post. Jacob. 


CADI. 
istrais. 


CADIT. I falls, abates, fails, ends, 
ceases. Seo CADERE, 


CADUCA. In the civil law. Property 
of an inheritable quality; property such us de- 
ecends to an heir. Aliso the lapse of a testa- 
mentary disposition or legacy. Also an es- 
cheat; escheated property. 


CADUCARY. Relating to or of the 
nature of escheat, forfeiture, or confiscation. 
2 Bl. Comm, 245, 


163 


To end; ecase; fail, | 


The nameof a Turkish civil mag- | 


CALENDAR 


CZEDUA. In the civil and old common 
law. Kept for cutting; intended or used to 
be cut. A term applied to wood. 


CASAR. Inthe Roman law. A cogno- 
men in the Gens Julia, which was assumed 
by the successors of Julius. Tayl. Civil 
Law, 31. 


CASAREAN OPHRATION. A sur- 
gical operation whereby the feotus, which 
can neither make its way into the world by 
the ordinary and natural passage, nor be ex- 
tracted by the attempts of art, whether the 
mother and foetus be yet alive, or whether 
either of them be dead, is, by a cautious and 
well-timed operation, taken from the mother, 
With a view to save the lives of both, or 
either of them. If this operation be per- 
formed after the mother’s death, the hus- 
band cannot be tenant by the curtesy; since 
his right begins from the birth of the is- 
sue, and is consummated by the death of the 
wife; but, if mother and child are saved, 
then the husband would be entitled after her 
death. Wharton. 


C/sTERIS PARIBUS. 
being equal. 


CHTERIS TACHNTIBUS. Lat. The 
others being silent; the other judges ox- 
pressing no opinion. Comb, 180. 


CHTERORUM. When a@ limited ad- 
ministration has been granted, and all the 
property cannot be administered under it, ad- 
ministration caterorwm (as to the residue) 
may be granted. 


CAHIER. InoldFrench law. A list of 
grievances prepared for deputies in the states- 
general. A petition for the redress of griey- 
unces enumerated. 


CAIRNS’ ACT, AnEnglish statute for 
enabling the court of chancery to award dam- 
ages. 21 & 22 Vict. c. 27. 


Other things 


CALCHTUM, CALCHA. A causeway, 
or common hard-way, maintained and re- 
paired with stones and rubbish. 


CALE. In old French law. A punish. 
ment of sailors, resembling the modern “ keel- 
hauling.” 


CALEFAGIUM. 
to take fuel yearly. 


In old law. 
Cowell. 


A right 


CALENDAR. The established order of 
the division of time into years, montlis, 


| weeks, and days; or a systemutized enumera- 


tion of such arrangement; an aliuanac. 


CALENDAR MONTH 


CALENDAR MONTH. One of the 
months of the year as enumerated in the cal- 
endar, — January, February, March, ete.,— 
without reference fo the number of days it 
may contain; as distinguished from a lunar 
mnonth, of twenty-eight days, or a month for 
businéss purposes, which may contain thirty, 
at whatever part of the year it occurs. 


CALENDAR OF CAUSES. In practice. 
A list of the causes instituted in the particu- 
lar court, and now ready for trial, drawn up 
by the clerk shertly before the beginning of 
the term, exhibiting the titles of the suits, ar- 
ranged in their order for trial, with the nat- 
ure of eaeh action, the date of issne, and the 
names of the counsel engaged; designed for 
the information and convenience of the cours 
and bar. Itis sometimes called the “trial- 
list,” or “docket.” 


CALENDAR OF PRISONERS. In 
English practice. A list kept by the sheriffs 
containing the names of all the prisoners in 
their custody, with the several judgments 
against each in the margin. Staundef. P.C. 
182; 4 Bl. Comm. 403. 


CALENDS. Among the Romans the first 
day of every month, being spoken of by it- 
self, or the very day of the new moon, which 
usually happen together. And if pride, the 
day before, be added to it, then it is the last 
day of the foregoing month, as pridie calend. 
Septemd. is the last day of August. If any 
number be placed with it, it signifies that day 
in the former month which comes so much 
before the month named, as the tenth calends 
of October is the 20th day of September; for 
if one reckons backwards, beginning at Octo- 
ber, that 20th day of September makes the 
10th day before October. In March, May, 
July, and October, the calends begin at the 
sixteenth day, but in other months at the 
fourteenth; which caleuds imust ever bear 
the name of the month following, and be 
numbered backwards from the first day of the 
said followipg months. Jacob. 


CALENDS, GREEK. <A metaphorical 
expression for a time never likely to arrive. 


CALL. 
tion of students to the degree of barrister at 
law, hence the ceremony or epoch of election, 
and the number of persons elected. 

2. In conveyancing. A visible natural 
object or landmark designated in a patent, 
entry, grant, or other conveyance of lands, 
as a limit or boundary to the land described, 
with which the points of surveying must 


164 


1. In English law. The elec; | 


CALLING 


correspond. 
designated. 

3. In corporation law. A demand made 
by the directors of a stock company upon the 
persons who have subseribed for shares, re 
quiring acertain portion or installment of 
the amount subseribed to be paid in. The 
word, in this sense, is synonymous with “as- 
sessment,” (gq. v.)} 

A call is an assessment on shares of stock, 
usually for unpaid installments of the sub- 
scription thereto. The word is said to be ca- 
pable of three meanings: (1) The resolution 
of the directors to levy the assessment; (2) 
its notification to the persons liable to pay; 
(3) the time when it becomes payable. 4 
Exch. 543. 

4. In the language of the stock ex- 
change, a “call” is an option to claim stock 
at a fixed price on acertain day. Bid. Siock- 
Brok, 70. 


Also the courses and distances 


CALL OF THE HOUSE. Acallot tha 
names of all the members of a legislative 
body, made by the clerk in pursuance of a 
resolution requiring the attendance of meim- 
bers. The names of absentees being thus 
ascertained, they are imperatively summoned 
(and, if necessary, compelled) to attend the 
session. 


CALLING A SUMMONS. In Scotch 
practice. See this described in Bell, Dict. 


CALLING THE JURY. Successively 
drawing out of a box into which they have 
been previously put the names of the jurors 
on the panels annexed to the nisi prius rec. 
ord, and calling them over in the order in 
which they are so drawn. The twelve per- 
sons wliose names are first called, and who 
appear, are sworn as the jury, unless some 
just cause of challenge or excuse, with re- 
spect to any of them, shall be brought for- 
ward, 


CALLING THE PLAINTIFF. In 
practice. A formal method of causing a 
nonsuit to be entered. 

When a plaintiff or his counsel, seeing 
that suflicient evidence has not been given 
to maintain the issue, withdraws, the crier 
is ordered to call or demand the plaintiff, 
and if neither he, nor any person for him, 
appear, he is nonsuited, the jurors are dis- 
charged without giving a verdict, the action 
is at an end, and the defendant recovers hig 
costs. 


CALLING TO THE BAR. In English 
practice. Conferring the dignity or degree 


* 


CALLING 


of barrister at law upon a member of one of 
the inns of court. Holthouse. 


CALLING UPON A PRISONER, 
When a prisoner has been found: guilty on an 
indictment, the clerk of the court addresses 
him and calls upon him to say why judgment 
should not be passed upon him. 


CALPES. InSeotch law. A gift to the 
head of a clan, ag an acknowledgment for 
protection and maintenance. 


CALUMNIA. In the civil law. Cal- 
umny, malice, or ill design; a false accusa- 
tion; a malieions prosecution, 

In the old common law. A claim, de- 
mand, challenge to jurors. 


CALUMNIA JURAMENTUM. In 
the old canon law. An oath similar to the 
calumniae jusjurandum, (q. v.) 


CALUMNIA JUSIURANDUM. The 
oath of calumny. An oath imposed upon 
the parties to a suit that they did not sue or 
defend with the intention of calumniating, 
(ealumniandt animo,) 7. e., with a malicious 
design, but from a firm belief that they had 
a guod cause. Inst. 4, 16. 


CALUMNIATOR. In the civil law. 
One who accused another of a crime without 
cause; one who brought a false accusation. 
Cod. 9, 46. 


CALUMNY. Defamation; slander; false 
accusation of a crime or offense. “There 
was a word called ‘calumny’ in the civil 
law, which signified an unjust prosecution 
or defense of a suit, and the phrase is said to 
be still used in the courts of Scotland and the 
ecclesiastical and udmirally courts of Eng- 
land, though we do not find cases of the 
kind in the reports.” 30 Ohio St. 117. 


CAMARA. In Spanish law. A treasury. 
Las Partidas, pt. 6, tit. 3, 1. 2. 
The exchequer. White, New Recop. b. 3, 


tit. 3, cy 1. 

CAMBELLANUS, or CAMBELLA- 
RIUS. <A chamberlain. Spelman. 

CAMRBIATOR. Inold Englishlaw. An 
exchanger. Cambiatores monete, exchan- 
gers of money; money-changers. 

CAMBIO. In Spanish law. Exchange. 


Sehm. Civil Law, 148. 


CAMBIPARTIA. Champerty; from 
campus, a field, and partis, divided. Spel- 
mat. 


CAMBIPARTICEPS. <A champertor. 


165 


ee 


CAMPBELL’s (LORD) ACTS 


CAMBIST. In mercantile law. A per- 
son skilled in exchanges; one who trades in 
promissory notes and bills of exchange. 


CAMBIUM. In the civil law. Change 
or exchange, A term applied indifferently 
to the exchange of land, money, or debts. 


Cambium reale or munvate was the term gen- 
erally used to denote the technical common-law ex- 
change of lands; cambium locale, mercantile, or 
trajectitium, was used to designate the modern 
mercantile contract of exchange, whereby a man 
aprees, in consideration of a sum of money paid 
him in one place, to pay a like sum in another 


place. Poth. de Change, n.12; Story, Bills, § 2, et 
seq. 
CAMERA. In old English law. A 


chamber, room, or apartment; a judge's 
chamber; a treasury; a chest or coffer. Al- 
so, 2 stipend payable from vassal to lord; an 
annuity. 

CAMERA REGIS. In old English law. 
A. chamber of the king; a place of peculiar 
privileges especially in a commercial point of 
view. 

CAMERA SCACCARIT. Theold name 
of the exchequer chamber, (g. 0.) 


CAMERA STELLATA. Thestarcham- 
ber, (gq. 2.) 


CAMERALISTICS. The science of 
finance or public revenue, comprehending the 
means of raising and disposing of it. 


CAMERARIUS. A chamberlain; a 
keeper of the public money; a treasurer. 
Also a bailiff or receiver. 


CAMINO. In Spanish law. A road or 
highway. Jas Partidas, pt. 3, tit. 2, 1. 6. 


CAMPANA. 
bell. Spelman. 


CAMPANA BAJULA. A small hand- 
bell used in the ceremonies of the Romish 
church; and, among Protestants, by sextons, 
parish clerks, and criers. Cowell. 


In old European law. A 


CAMPANARIUM, CAMPANILE. <A 
belfry, bell tower, or steeple; a place where 
bells are hung. Spelman; Townsh. Pl. 191, 
213. 

CAMPARTUM. A part of a larger field 


or ground, which wouid otherwise be in gross 
or in ¢oinmon. 


CAMPEELL’S (LORD) ACTS. En- 
glish statutes, for amending the practice in 
prosecutions for libel, 9 & 10 Vict. e. 93; al 
306 & 7 Vict. c. 96, providing for compensa- 
tion to relatives in the ease of a person hay- 


i 


CAMPERS 


ing been killed through negligence; also 20 | by defacing, obliterating, expunging, or eras. 


& 21 Viet. ¢. 83, in regard to the sale of ob- 
scene books, ete. : 


CAMPERS. A share; a champertor’s 
share; a champertons division or sharing of 
land. 


CAMPERTUM,. ‘A corn-field: a field of 
grain. Blount; Cowell; Jacob, 


CAMPFIGHT. Inold Englishlaw. The 
fighting of two champions or combatants 
in the field; the judicial combat, or dueliuin. 
3 Inst, 221. 


CAMPUS. In old European law. An 
assembly of the people; so called from be- 
ing anciently held in the open air, in sume 
plain capable of containing a large number 
of persons, 

In feudal and old English law. A field, 
or plain. The field, ground, or lists marked 
out for the combatants in the duellum, or 
trial by battle. 


CAMPUS MAII. L. Lat. The field of 
May. An anniversary assembly of the Sax- 
ons, held on May-day, when they confederat- 
ed for the defense of the kingdom against 
all its enemies. 


CAMPUS MARTII. 
See CHAMP DE Maks. 


CAN. A promise to pay as soon as the 
debtor possibly can is in contemplation of 
law a promise to pay presently; the law sup- 
poses every man able to pay his debts. 1 
Bibb, 396. 


CANA. 
ground. 


CANAL. An artificial ditch or trench 
in the earth, for confining water to a de- 
fined channel, to be used for purposes of 
transportation. 

The meaning of this word, when applied 
to artificial passages for water, is i trench 
or excavation in the earth, for conducting 
water and confining it to nariow limits. It 
is unlike the words “river,” “pond,” “lake,” 
and other words used to designate natural 
bodies of water, the ordinary meaning of 
which is confined to the water itself; but 
it includes aiso the banks, and has reference 
rather to the excavation or channel as a re- 
ceptacle for the water; it is an artificial 
thing, 18 Conn. 394. See, also, 103 U.5. 
604. 


CANCEL. To obliterate, strike, or cross 
out; to destroy the effect of an instrument 


The field of March. 


A distance in the measure of 


166 


CANDLEMAS-DAY 


ing it. See 18 Cal. 451. 

In equity. Courts of equity frequently 
cance] instruments which have answered the 
end for which they were created, or instru- 
ments which are void or voidable, in order 
to prevent them from being vexatiously used 
against the person apparently bound by 
them. Snell, Eq. 498. 


CANCELLARIA. Chancery; the court 
of chancery. Curia cancellaria is also used 
in the same sense. See 4 Bl. Comm. 46; 
Cowell. 


Cancellarii Anglice diguitas est, ut se- 
cundus a rege in regno habetur. The 
dignity of the chancellor of England is that 
he is deemed the second from the sovereign 
in the kingdom. 4 Inst. 78. 


CANCELLARIUS. A chancellor; a 
scrivener, or notary. A janitor, or one who 
stood at the door of the court and was ac- 
customed te carry out the commands of the 
judges. 


CANCELLATION. Theact of crossing 
out a writing. The manual operation of 
tearing or destroying 4 written instrument. 
1 Eq. Cas, Abr. 409; Rob. Wills, 367, n. 

According to Bartolus, an expunging or 
wiping out of the contents of an instrument 
by two lines drawn in the manner of a cross; 
also used to siguify any manner of oblitera- 
tion and defacement. 


CANCELLATURA. Inold English law. 
A cancelling. Bract, 398b. 


CANCELLI. The rails or lattice work or 
balusters inclosing the bar of a court of jus- 
tice or the communion table. Also the lines 
drawn on the face of a will or other writ- 
ing, with the intention of revoking or an- 
nulling it, 


CANDIDATE. <A person who offers him- 
self, or is presented bv others, to be elected 
to an ofiice. Derived from the Latin candi- 
dus, (white,) because in Rome it was the 
custom for those who sought oifice to elothe 
themselves in white garments, 

One who seeks or aspires to some office or 
privilege, or who offers himself for the same. 
A man is a candidite tor an office when he is 
seeking such office. It is not necessary that 
he should have been nominated for the office. 
112 Pa. St. 624, 4 Atl. Rep. 607, 


CANDLEMAS-DAY, A festival ap 
pointed by the church to be observed on the 
second day of February in every year, in 


CANFARA 


honor of the purification of the Virgin Mary, 
being forty days after her miraculous deliv- 
ery. At this festival, formerly, the Protest- 
anis went, and the Papists now go, in proces- 
sion with lighted candles; they also canse- 
crate candles on this day for the service of 
the ensuing year. It is the fourth of the 
four cross quarter-days of tue year, Whar- 
ton. 


CANFARA. Inold records. A trial by 
hot iron, formerly used in England. Whish- 
aw. 

CANON. A law, rule, or ordinance in 
general, and of the church in particular. An 
ecclesiastical law or statute. 

One of the dignituries of the English 
church; being a prebendary or member of a 
chapter. 

In the civil, Spanish, and Mexican law. 
An annual charge or rent; an empliyleutic 
rent. See 15 Cal. 556. 

In old English records. 


pension, or customary payment. Cowell. 


CANON LAW. A body of ecclesiastical | 


jurisprudence which, in countries where the 
Roman Catholicchurch is eatublished, is com- 
posed of maxims and rules drawn from pa- 
tristie sources, ordinances and decrees of 
general councils, and the decretals and bulls 
of the popes. In England, according to 
Blackstone, there is a kindof national canon 
law, composed of legatine and provincial con- 
stitutions enacted in England prior to the 
reformation, and adapted to the exigencies of 
the English church and kingdom. 1 Bl. 
Comm. $2. 

The canon law consists partly of certain rules 
taken out of the Scripture, partly of the writings 
of the ancient fathers of the church, partly of the 
ordinances of general and provineial councils, and 
pertly of the decrees of the popes in former ages; 
and it is contained in two principal parts,—the 
decrees and the decretals. The decrees are eccie- 
Siastical constitutions made by the popes and car- 
dinals. The decretals are canonical epistles writ- 
ten by the pope, or by the pope and cardinals, at 
the suitaf one or more persons, for theordering and 
determining of some matter of controversy, aud 
have the authority of alaw. Ag the decrees sot 
out the origin of the canon law, and the rights, 
dignities, and decrees of ecclesiastical persons, 
with their manner of election, ordination, etec., 30 
the decretals contain the luw to be used in the ec- 
clesiastical courts. Jacob. 


CANON RELIGIOSORUM. Lat. In 
ecclesiastical records. A book wherein the 
religious of every greater convent liad a fair 
transcript of the rules of their order, fre- 
quently read among them as their local stat- 
utes. Kennett, Glogs.; Cowell. 


167 


A prestation, | 


CANTRED 


CANONICAL. Pertaining to, or incon- 
formity to, the canons of the church. 


CANONICAL OBEDIRNCEH. That 
duty which a clergyman owes to the bishop 
who ordained him, to the bishop in whose 
divcese le is beneticed, and also to the met- 
ropolitan of such bishop. Wharton. 


CANONICUS. In old Englishlaw, A 
canon. Fleta, lib. 2, c. 69, § 2. 


CANONIST. One versed and skilled in 
the canon law; a professor of ecclesiastical 
law, 


CAWNONRY. In English ecclesiastical 
law. An ecclesiastical benefice, attaching 
to the office of canon. Holtiouse. 


CANONS OF DESCHNT. The legal 
rules by whieh inheritances ara regulated, 
and according to which estates are transmit- 
ted by descent from the ancestor to the heir, 


CANONS OF INHERITANCE. The 
legal rules by which inheritances are regu- 
lated, and according to which ostates are 
transmitted by descent from the ancestor to 
the heir, 2 Bl. Comm, 208. 


CANT. In the civil law. A method of 
dividing property held in common by two or 
more juint owners. See 9 Mart. (La.) $7. 


CANTEL, or CANTLE. <A lump, or 
that which is added above measure; also a 
piece of anything, as “cantel of bread,” or 
the like. Blount. 


CANTERBURY, ARCHBISHOP OF. 
In English ecclesiastical law. The’ primate 
of all Hingland; the chief ecclesiastical digni- 
tary in the church. His customary privilege 
is tocrown the kings and queens of England; 
while the Archbishop of York has the privi- 
lege to crown the queen consort, and be her 
perpetual chaplain. The Arehbislop of Can- 


terbury has also, by 25 Hen. VLI. ¢. 21, the 


power of granting dispensations in any case 
not contrary to the holy seriptures and the 
law of God, where the pope used formerly to 
grant them, which is the foundation of his 
granting special licenses to marry at any placa 
or tima; to hold two livings, (which must be 
confirmed under the great seal,) and the like; 
and on this also is founded the right he exer- 
cises of conferring degrees in prejudice of 
the two universities. Wharton. 


CANTRED. A district comprising a 
huniired villages; a hundred. A term used 
in Wales in the same sense as “hundred” is 
in England. Cowell; Termes de la Ley. 


H 


Rt 


CANUM 


CANUM,. Im feudal law. <A species of 
duty or tribute payable from tenant to lord, 
usually consisting of produce of the land. 


CANVASS. The act of examining and 
counting the returns of yotes cast ata pub- 
lic election. 


CAP OF MAINTENANCE. One of 
the regalia or ornaments of state belonging 
to the sovereigns of England, before whom 
it is curried at the coronation and other 
great solemnities. Caps of maintenance are 
also carried before the mayors of several 
cities in England. Enc. Lond. 


CAPACITY. Legal capacity is the attri- 
bute of a person whocan acquire new rights, 
or transfer rights, or assume duties, accord- 
ing to the mere dictates of his own will, as 
manifested in juristic acts, without any re- 
straint or hindrance arising from lis status 
or legal condition. 

Ability; qualification; legal power or right. 
Applied in this sense to the attribute of per- 
sons (natural or artificial) growing out of 
their status or furistic condition, which en- 
ables them to perform civil acts; as capacity 
to hold lands, capacity to devise, etc. 


CAPAX DOLI, Lat. Capable of com- 
mitting crime, or capable of criminal intent. 
The phrase describes the condition of one 
who has suflicient intelligence and compre- 
hension to be held criminally responsible for 
his deeds. 


CAPAX NEGOTII. Competent to 
transact affairs; having business capacity. 


CAPE. In English practice. A judicial 
writ touching a plea of lands or tenements, 
‘divided into cape magnum, or the grand 
cape, which lay before appearance to sum- 
mon the tenant to answer the default, and 
also over to the demandant; the cape ad va- 
tentiam Was @ species of grand cape; and 
cape parvum, or petit cape, alter appearance 
or view granted, summoning the tenant to 
answer the default only. Termes de la Ley; 
3 Steph. Comm. 606, note. 


CAPE AD VALENTIAM. 
of cape magnum. Sev CAPE. 


A species 


CAPELLA, In old records. A box, 
cabinet, or repository in which were preserved 
the relies of martyrs. Spelman. A small 
building in which relics were preserved; an 
oratory or chapel. Id. 

In old English law. A chapel. 
lib. 5, c. 12, § 1; Spelman; Cowell. 


Fleta, 


168 


CAPIAS EXTENDI FACIAS 


CAPERS. Vessels of war owned by pri- 
vate persons, and different from ordinary 
privateers only in size, being smaller. 
Beawes, Lex Merc. 230. 


CAPIAS. Lat. “That you take.” The 
general name for several species of writs, the 
common characteristic of which is thal they 


| require the officer to take the body of the de- 


fendant into custody; they are writs of at- 
tachment or arrest. 

In English practice. A capias is the 
process on an indictment when the person 
charged is not in custody, and in cases not 
otherwise provided for by statute. 4 Steph. 
Comm. 333. 


CAPIAS AD AUDIENDUM JUDI- 
CIUM. In practice. A writ issued, in a 
case of misdemeanor, after the defendant has 
appeared and is found guilty, to bring hiin to 
hear judgment if he is nob present when 
called. 4 Bl. Comm. 368. 


CAPIAS AD COMPUTANDUM. In 
the action of aceouns render, after judgment 
of quod computet, ifthe defendant refuses to 
appear personally before the auditors and 
make his account, a writ by this name may is- 
sue to compel him. 


CAPIAS AD RESPONDENDUM. in 
practice. A judicial writ, (usually simply 
termed a “capius,”) by which actions at law 
were frequently commenced; and which com- 
mands the sheriff to take the defendant, and 
him safely keep, 30 that he may have his 
body before the court on a certain day, to an- 
swer the plaintiff in the action. 3 31. Comm. 
282; 1 Tidd, Pr. 128. The name of this writ 
is commonly abbreviated to ea. resp. 


CAPTAS AD SATISFACIENDUM. In 
practice. A writ of execution, (usually 
termed, for brevity, a “ea. sa.,”) which a par- 
ty may issue after having recovered judgment 
ag:inst another in certain actions atlaw. It 
commands the sheriff to take the party named, 
and keep him safely, so that he may have hia 
body before the court on acertain day, to sat- 
isfy the party by whom it is issued, the dam- 
ages or debt and damages recovered by the 
judgment. Its effect is to deprive the party 
taken of bis liberty until he makes the satis- 
faction awarded. 3 Bi. Comm. 414, 415; 2 
Tidd, Pr. 993, 1025; Litt. § 504; Co. Litt. 
239a. 


CAPIAS EXTENDI FACIAS. A writ 
of execution issuable in England against a 
debtor to the crown, which commands the 
sheriff to “take” or arrest the body, and 


CAPITAL PUNISHMENT 


CAPITAL PUNISHMENT. 
ishment of death. 


The pun- 


CAPITATL STOCK. The common stock 
or fund of acorporation, The sum of money 
raised by the subscriptions of the stovkhold- 
ers, and divided into shares. It is said to be 
the sum upon which calls may be made upon 
the stockholders, and dividends are to be 
paid. 1 Sandf. Ch. 280; Ang. & A. Corp. 
8§ 151, 556. 

Originally “the capital stock of the bank” was 
all the property of every kind, everything, which 
the bauk possessed. And this “capital stock, ” all 
of it, in reality belonged to the contributors, it be- 
ing intrusted to the bank to be used and traded 
with for theirexclusive benefit; and thus the baulc 
became the agent of the contributors, so that the 
transmutation of the money originally advanced 
by the subscribers into property of other kinds, 
though it altered the form of the investment, left 
its beneficial ownership unaffected; and every 
new acquisition of property, by exchanze or other- 
wise, was an acquisition for the original subscrib- 
ers or their representatives, their respective in- 
terests in it all always continuing in the same 
proportion as in the aggregate capital originally 
advanced. So that, whether in the form of moncy, 
bills of exchange, or any other property in posses- 
sion or in action into which the money originall 
contributed has been changed, or which it has pro- 
dueed, allis, as the original contribution was, the 
capital stock of the bank, held, as the original con- 
tribution was, for the exclusive benefit of the 
original contributors and those who represent 
them. The original contributors and those who 
represent them are the stockholders. 31 Conn, 
109. 

Capital stock, as employed in acts of iucorpora- 
tion, is never used to indicate the value of the 
property of the company. It is very generally, if 
not universally, used to designate the amount of 
capital prescribed to be contributed at the outset 
by the stockholders, for the purposes of the corpo- 
ration. The value of the corporate assets may be 
greatly increased by surplus profits, or be dimin- 
ished by losses, but the amouut of the capital stock 
remuins the same. The funds of the company may 
fluctuate; its capital stock remains invariable, un- 
less changed by legislative authority. 23 N. J. 
Law, 195. 


CAPITALE. A thing which is stolen, 
or the value of it. Blount, 


CAPITALE VIVENS. Live cattle. 
Blount. 


CAPITALIS. In old Englishlaw. Chief, 
principal; at the Aead. A term applied to 
persons, places, judicial proceedings, and 
some kinds of property. 


CAPITALIS BARO. In old English 
law. Chief baron. Capitalis baro scaccarii 
domini regis, chief baron of the exchequer. 
Townsh. Pl. 211. 


170 


| §2. 


| Spelman; 3 Bl. Comm. 38. 


CAPITATION 


CAPITALIS CUSTOS. Chief warden 
or magistrate; mayor. Fleta, lib. 2, ¢. 64, 


CAPITALIS DEBITOR. The chief or 
principal debtor, as distinguished from a 
surety, (plegéus.) 


CAPITALIS DOMINUS. Chief lord. 
Feta, lib. 1, e. 12, § 4; Id. ¢. 28, § 5. 


CAPITALIS JUSTICIARIUS. The 
chief justiciary; the principal minister of 
state, and guardian of the realm in the king’s 
absence. 

This office originated under William the 
Conqueror; but its power was greatly dimin- 
ished by Magna Charta, and finally distrib- 
uted aniong several courts by Edward L 


CAPITATLIS JUSTICIARIUS AL 
PLACITA CORAM REGE TENENDA. 
Chief justice for holding pleas before the 
king. e title of the chief justice of the 
king’s bench, first assumed in the latter part 
of the reign of Henry III. 2 Reeve, Eng. 
Law, 91, 285. 


“ CAPITALIS JUSTICIARIUS BAN- 
CI. Chief justice of the bench. The'title of 
the chief justiceof the (now) court of com. 
mon pleas, first mentioned in the first year 
of Edward I, 2 Reeve, Eng. Law, 48. 


CAPITALIS JUSTICIARIUS TOTI- 
US ANGLIA. Chief justice of all Eng- 
land. The title of the presiding justice in 
the court of aula regis. 3 Bi. Comm. 33; 1 
Reeve, Eng. Law, 48. 


CAPITALIS PLEGIUS. A chief pledge; | 
ahead borough. Townsh. Pl. 35. 


CAPITALIS REDITUS. A chief rent. 


CAPITALIS TERRA. Ahead-land. A 
piece of land lying at the head of other land. 


CAPITANEUS. A tenant tm capite. 
He who held his land or title directly from 
the king himself. A captain; a navai com- 
mander. 


CAPITARE. In old law and surveys. 
To head, front, or abut; totouch at ihe head, 
or end. 


CAPITATIM. Lat. By tho head; by 
the poll; severally to each individual. 


CAPITATION. (Lat. caput, head.) A 
poll-tax, An imposition periodically Jaid upon 
each person. 

A tax or imposition raised on each per- 
son in consideration of his labor, industry, 


CAPITAL PUNISHMENT 


CAPITAL PUNISHMENT. 
ishment of death. 


The pun- 


CAPITAL STOCK. The common stock 
or fund of acorporation. The sum of money 
raised by the subscriptions of the stoekhold- 
ers, and divided into shares, It is said to be 
the sum upon which ealls may be made upon 
the stockholders, and dividends are to be 
paid. 1 Sandi. Ch. 280; Ang. & A. Corp. 
§§ 151, 556. 


Originally “the capital stock of the bank” was 
all the property of every kind, everything, which 
the bank possessed, And this “capital stock,” all 
of it, in reality belonged to the contributors, it be- 
ing intrusted to the bank to be used and traded 
with for their exclusive beuefit; and thus the bank 
became the agent of the contributors, so that the 
transmutation of the money originally advanced 
by the subscribers into property of other kinds, 
though it altered the form of the investment, left 
its beneficial ownership wnaffected; and every 
new acquisition of property, by exchange or other- 
wise, was an acquisition for the original subscrib- 
ers or their representatives, their respective in- 
terests in it all always continuing in the same 
proportion as in the aggregate capital originally 
advanced. Sothat, whether in the form of money, 
bills of exchange, or any other property in posses- 
sion or in action into which the money originally 
contributed has been changed, or which it has pro- 
duced, allis, as the original contribution was, the 
capital stock of the bank, held, as the original con- 
tribution was, for the exclusive benefit of the 
original contributors and those who represent 
them. The original contributors and those who 
represent them are, the stockholders. 81 Conn. 
108. 

Capital stock, 4s employed in acts of incorpora- 
tion, is never used to indicate the value of the 
property of the company. It is very generally, if 
not universally, used to designate the amount of 
capital prescribed to be contributed at tho outset 
by the stockholders, for the purposes of the corpo- 
ration. The value of the corporate assets may be 
greatly increased by surplus profits, or be dimin- 
ished by losses, but the arsount of the cupital stock 
remains the same. The funds of the company may 
fluctuate; its capital stock remains invariable, un- 
less changed by legislative authority. 23 N. J. 
Law, 195, 


CAPITALE. A thing which is stolen, 
or the value of it. Blount. 


CAPITALE VIVENS. Live cattle. 
Blount. 


CAPITALIS. In old English law. Chief, 
principal; at the Aead. A teri applied to 
persons, places, judicial proceedings, and 
some kinds of property. 


CAPITALIS BARO. In old English 
law. Chief baron. Capitalis baro scaccarit 
domini regis, chief baron of the exchequer. 
Townsh, Pl. 211. 


170 


| 


CAPITATION 


CAPITALIS CUSTOS. Chief warden 
or magistrate; mayer. Fleta, lib. 2, e. 64, 


§ 2. 


CAPITALIS DEBITOR. The chief or 
principal debtor, as distinguished from a 
surely, (plegius.) 


CAPITALIS DOMINUS. Chief lord. 
Fleta, lib. 1, c. 12, § 4; Id. ¢. 28, § 5. 


CAPITALIS JUSTICIARIUS. The 
chief justiciary; the principal minister of 
state, and guardian of the realm in the king’a 
absence, 

This office originated under William the 
Conqueror; but its power was greatly dimin- 
ished by Magna Charta, and finally distrib- 
uted among several courts by Edward L 
Spelman; 3 Bl. Comm. 38. 


CAPITALIS JUSTICIARIUS AD 
PLACITA CORAM REGE THNENDA. 
Chief justice for holding pleas before the 
king. The title of the chief justice of the 
king’s bench, first assumed in the latter part 
of the reign of Henry Ill. 2 Reeve, Eng. 
Law, 91, 285. 


CAPITALIS JUSTICIARIUS BAN. 
CI. Chief justice of the bench, The title of 
the chief justice of the (now) court of com 
mon pleas, first mentioned in the first year 
of Edward I. 2 Reeve, Eng. Law, 48. 


CAPITALIS JUSTICIARIUS TOTI- 


US ANGLIA. Chief justice of all Eng- 
land. The title of the presiding justice in 


the court of aula regis. 
Reeve, Eng. Law, 48. 


CAPITALIS PLEGIUS. A chief pledge; 
a head borough. Townsh. Pl. 85. 


CAPITALIS REDITUS. A chief rent, 


CAPITALIS TERRA. Ahead-land. A 
piece of land lying at the head of other land. 


CAPITANEUS. A tenant in capite. 
He who held his land or title directly from 
the king himself. A captain; a navai com- 
mander. 


CAPITARE. In old law and surveys. 
To head, front, or abut; totouch at the head, 
or end. 


CAPITATIM. Lat. By the head; by 
the poll; severally to each individual. 


CAPITATION. (Lat. caput, head.) A 
poll-tax. An imposition periodically Jaid upon 
each person. 

A tax or imposition raised on each per- 
80n in consideration of his labor, industry, 


3 Bi. Comm. 88; 1 


CAPITATION TAX 


office, rank, ete. It is a very ancient kind 
of tribute, and answers to what the Latins 
called “tributem,” by which taxes on per- 
sons are distinguished from taxes on mer- 
chandise, called “weeligaiia.” Wharton. 


CAPITATION TAX. 
fed upon the person simply, without any ref- 
erence to his property, real or personal, or to 
ally business in which he may be engaged, or 
to any employment which he may follow. 
Phillips, 22. 


CAPITE. Bythehead. Tenure in capite 
wasan ancient feudal tenure, whereby a man 
held lands of the king immediately. It was 
of two sorts,—the one, principal and general, 
or of the king as the source of all tenure; the 
other, special and subaltern, or of a particu- 
lar subject. It is now abolished. Jacob. 
As to distribution per capita, see CAPITA. 


CAPITE MINUTUS. In the civil law. 
One who had suffered capitis diminutio, one 
who lost status or legal attributes. See Dig. 
4,5. 


CAPITIS DIMINUTIO. In Roman law. 
A diminishing or abridgment of personality. 
This was a loss or curtailment of @ man’s 
siatus or aggregate of legal attributes anid 
qualifications, following upon certain 
changes in hia civil condition. It was of 


three kinds, enumerated as follows: 


Capitis diminutio maxima, The high- 
est or most comprehensive loss of statis. 
This occurred when a man’s condition was 
changed from one of freedom to one of bond- 
fe, when he became a slave. It swept away 
with ig all rights of citizenship and all family 
rights, 


Capitis diminntio media. A lesser or 
medium loss of steéus. This occurred where 
a man lost his rights of citizenship, but with- 
out losing his liberty. It carried away also 
the family rights. 


Capitis diminutio minima. The low- 
est or least comprehensive degree of loss of 
status, This occurred where a man’s family 
relations alone were changed. It happened 
upon the arrogation of a person who hail been 
his own master, (swé juris,) or upon the 
emancipation of one who had been under the 
patria potestas. It left the rights of liberty 
and citizenship unaltered. See Inst. 1, 16, 
pr.; 1, 2, 3; Dig. 4, 5, 11; Mackeld. Rom 
Law, § 144. 


CAPITITIUM. A covering for the 
head, mentioned in St. 1 Hen. 1V. and other 


171 


One which is lev- | 


CAPITULI AGRI 


old statutes, which preseribe what dresses 
shall be worn by all degrees of persons. Ja- 
cob. 


CAPITULA. Collections of laws and or- 
dinunces drawn up under heads of divisions. 
Spelman. 

The term is used in the civil and old En- 
giish law, and applies to the ecelesiastical 
law also, meaning chapters or assemblies 
of ecclesiastical persons. Du Canve. 


CAPITULA CORONAS. Chapters of 
the crown. Chapters or heads of inquiry, 
resembling the eapitula itineris, (q.v.,) but 
of a more minute character. 


CAPITULA DH JUDAIS. A regis- 
ter of mortgages made to the Jews. 2 BI. 
Comm. 348; Crabb, Eng. Law, 180, et seq. 


CAPITULA ITINERIS. Articles of 
inquiry which were anciently delivered to the 
justices in eyre when they set out on their 
circuits. These schedules were designed lo 
include all possible varieties of crime. 2 
Reeve, Eng. Law, p. 4, ¢. 8 


CAPITULA RURALIA. Assemblies 
or chapters, held by rural deans and paro- 
chial clergy, within the precinct of every 
deanery; which at first were every tlirce 
weeks, afterwards once a month, and subse- 
quently once a quarter, Cowell. 


CAPITULARY. In French law. A 
collection and code of the laws and ordi- 
nances promulgated by the kings of the Me- 
rovingian and Carlovingian dynasties. 

Any orderly and systemiutic collection or 
code of laws. 

In ecclesiastical law. <A collection of 
laws and ordinances orderly arranged by di- 
visions. A book containing the beginning 
and end of each Gospel which is to be read 
every day in the ceremony of saying mass. 
Du Cunge. 


CAPITULATION, In military law. 
The surrender of a fort or fortified town toa 
besieging army; the treaty or agreement be- 
tween the conmmanding officers which em- 
bodies the terms and condilions on which Lhe 
surrender is mace, 

In the civil law. An agreement by 
which the prince and the people, or those whe 
have the right of the people, reyulate the 
manner in which the government is to be ad- 
ministered. Wolifius, § 939. 

CAPITULI AGRI. Head-fields; lands 
lying at the head or upper end of furrows 
ete, 


J 


L 


mM 


CAPITULUM 


Capitulum est cloricorum congregatio 
sub uno decano in ecclesia cathedrali. 
A chapter is a congregation of clergy under 
one dean in a eathedra) church. Co. Litt. 98. 


CAPPA, Inold records. A cap. Cappa 
honoris, the cap of honor. One of the sa- 
lem nities or ceremonies of creating an earl or 
marquis. 


CAPTAIN, <A head-man; commander; 
commanding officer. The captain of a war- 
vessel is the officer first in command. In 
the United States navy, the rank of “captain” 
ia intermediate between that of “command- 
er” and “commodore.” The governor or 
controlling officer of a vessel in the merchant 
service is usually styled “captain” by the in- 
ferior officers and seamen, but in maritime 
business and aimiralty law is more cvummon- 
ly designated as “master.” In foreign juris- 
prudence his title is often that of “patron.” 
In the United States army (and the militia) 
the captain is the commander of a company 
of soldiers, one of the divisions of a regiment. 
The term is also used to designate the com- 
mander of a squad of municipal police. 


CAPTATION. In French law. The 
act of one who succeeds in controlling the 
will of another, so as to become master of it; 
used in an invidious sense. 


CAPTATOR. <A person who obtains a 
gift or legacy through artifice. 


GAPTIO. In old English law and prac- 
tice. A taking orseizure; arrest; receiving; 
holding of court. 


CAPTION. In practice. That part of 
8 leval instrument, as a commission, indict- 
ment, ete., which shows whtre, when, and 
by what authority it is taken, found, or exe- 
cuted. 

When used with reference to sn indictment, 
caption siguifies the style or preamble or com- 
Ineucement of the indictment; when used with 
reference to a commission, it signifies the certifi- 
cate to which the commissioners’ names are sub- 
scribed, declaring when and where it was execut- 
ed. brown. 

The caption of a pleading, deposition, or 
olher paper connected with a case in court, 
is the heading or introductory clause which 
shows the naines of the parties, name of the 
court, number of the case on the docket or 
ealendar, ete. 

Also signifies a taking, seizure, or arrest 
ofa person. 2 Salk. 498. The word in this 
sense is now obsolete in English law. 


In Scotch law. Caption is an order to 
inearcerate a debtor who has disobeyed an 


172 


| property. 


CAPUT LUPINUM 


order, given to him by what are called “let- 
ters of horning,” to paya debt or to perforin 
some act enjuined thereby. Bell. 


CAPTIVES. Prisoners of war. As in 
the goods of an enemy, so also in his person, 
a sort of qualified praperty may be acquired, 
by taking him a prisoner of war, at least till 
his ransom be paid. 2 Bl. Comm. 402, 


CAPTOR. In international law. One 
who takes or seizes property in time of war; 
one who takes the property of an enemy. In 
a stricter sense, one who takes a prize at sea. 
2 Bl. Comm, 401; 1 Kent, Comm. 86, 96, 
103. 


CAPTURE. In international law. The 
taking or wresting of property from one of 
two belligerents by the other. It oceurs 
either on land or at sea. In the former case, 
the property captured is called “booty;” in 
the latter case, “prize,” 

Capture, in technical language, is a taking by 
military power; a seizure is a taking by civil au- 
thority. 85 Ga. 344, 

In some cases, this is a mode of acquiring 
Thus, every one may, as a general 
rule, on his own land, or on the sea, capture 
any wild animal, and acquire a qualified own- 
ership in it by confining it, or absolute own- 
ership by killing it, 2 Steph. Comm. 79. 


CAPUT. A head; the head of a person; 
the whole person; the life of a person; one’s 
personality; status; civil condition. 

At common law. A head. 

Caput comitatés, the head of the county; 
the sheriff; the king. Spelman. 

A person; a life. The upper part of a 
town. Cowell. A castle. Spelman. 

In the civil law. It signilied a person’s 
civil condition or status, and among the Ro- 
mans consisted of three component parts or 
elements,—iiberias, liberty; céivitas, citizen- 
ship; and familia, family. 


CAPUT ANNI. The first day of the 
year. 


CAPUT BARONIA, Thecastle or chief 
seat of a baron. 


CAPUT JEJUNIL. The beginning of 
the Lent fast, 2. ¢., Ash Wednesday. 


CAPUT LOCI. The head or upper part 


of a place. 
CAPUT LUPINUM. In old English 
law. <A wolf's head. An outlawed felon 


was said to be raput dupinum, and might be 
knocked on the head, like a wolf. 


CAPUT MORTUUM 


CAPUT MORTUUM. A dead head; /{ used in playing certain games. 


icad; obsolete. 


CAPUT PORTUS. In old English law. 
The head ofa port. The town to which a 
port belongs, and whieh gives the denomina- 
tion to the port, and is the head of it, Hale 
de Jure Mar. pt. 2, (de portubus maris,) 
o. 2. 


CAPUT, PRINCIPIUM, ET FINIS. 
The head, beginning, and end. <A term ap- 
plied in English law to the king, as head of 
jarliament. 4 Inst. 3; 1 Bl. Comm. 188. 


CAPUTAGIUM. In old English law. 
Head or poll money, or the payment of it. 
Dowell; Blount. 


CAPUTIUM. In old English law. A 
oead of land; a headland. Coweil. 
CARABUS. In old English law. A 


tind of raft or boat. Spelman. 


CARAT. A weight of four grains, used 
in weighing diamonds. Webster. A weight 
equal to three and one-sixth grains. Whar- 
i00, 

CARCAN. In French law. An instru- 
ment of punishment, somewhat resembling 
apillory. It sometimes signifies the punish- 
ment itself. Biret, Vocab 


CARCANUM. A gaol; a prison. 


CARCARE. In old English law. 
joad; to load a vessel; to freight. 


CARCATUS. 
ship. 

CARCEL-AGE. 

CARCER. A prison or gaol. Strictly, a 
place of detention and safe-keeping, and not 
of punishment. Co. Litt. 620. 


Carcer ad homines custodiendos, non 


To 


Loaded; freighted, as a 


Gaol-dues; prison-fees, 


ad puniendos, dari debet, A prison should | 


be used for keeping persons, not for punish- 
ing them. Co. Litt. 260e. 


Carcer non supplicii caus& sed cus- 
todise constitutus. A prison is ordained 
not for the seke of punishment, but of de- 
tention and guarding. Lofft, 119. 


CARDINAL. In ecclesiastical law. A 
dignitary of the court of Rome, next in rank 
to the pope. 


CARDS. Incriminallaw. Small papers 
or pasteboards of an oblong or rectangular 
shape, on which are printed figures or points, 


173 


CARGA 


See 2 
Humph, 496; 4 Pick. 261; 19 Mo. 377; 12 
Wis. 434. 


CARE. Asa legal term, this word means 
diligence, prudence, discretion, attentiveness, 
watclifulness, vigilance. It is the opposite 
of negligence or carelessness. 

There are three degrees of care in the law, 
corresponding (inversely) to the three de- 
grees of negligence, viz.: slight care, ordinary 
care, and great care. 

Slight care or diligence is such as persons 
of ordinary prudence usually exercise about 
their own affairs of slight importance; ordi- 
nary care or diligence is such as they usually 
exercise about their own affairs of ordinary 
importance; and great care or diligence is 
such as they usually exercise about their own 
affairs of great importance. Civil Code 
Dak. § 2100. 

The exact boundaries between the several de- 
grees of care, and their correlative degrees of 
carelessness, or negligence, are not always clearly 
defined oreasily pointed out. We think, however, 
that by “ordinary care”is meant that decree of 
care which may reasonably be expected from a 
person in the party’s situation,—that is, “reasona- 
ble care;” and that “gross negligence” iniports 
not &@ malicious intention or design to produce a 
particular injury, but a thoughtless disregard of 
conseyueuces, the absence, rather than the actual 
exercise, of volition with reference to results. 23 
Conn. 443. 

Slight care Is such as is usually exercised by 
persons of common sense, but careless habits, un- 
der circumstances similar to those of the particu- 
lar case in which the question arises, aud where 
their own interests are to be protected from a sim- 
ilar injury. 

Ordinary care is such as is usually exercised in 


' the like circumstances by the majority of the com- 


munity, or by persons of careful and prudent 
habits. 

Great care is such as is exercised under such 
circuinstances by persons of unusually careful 
and prudent habits. Abbott. 


CARENA. A term used in the old eccle- 
siastical law to denote a period of forty days. 


CARENCE. In French law. A procés- 
verbal de cavence isa document setting out 


; that the Awéissier altended to issue execution 


upon a judgment, but found nothing upon 
which to levy. Arg. Fr. Mere. Law, 547. 


CARBTA, (spelled, also, Car7eta and Ca- 
recta.) A cart; a cart-load. 


CARETORIUS, or CARECTARIUS. 
A carter, Blount. 


CARGA. In Spanish law. An incum- 
brance; a charge. White, New Recop. b. 2, 


| tite is, Cc. 2; § Ze 


M 


CARGAISON 
CARGAISON. In French commercial 
law. Cargo; lading. 
CARGARE,. In old English law. To 


charge. Spelman. 


CARGO. In mercantile law. The load 
or lading of a vessel; goods and merchandise 
put on beard a ship to be carried to a cer-~ 
tain port. 

The lading or freight of a ship; the goods, 
merchandise, or whatever is conveyed in a 
ship or other merchant vessel. See] Mason, 
142; 4 Pick. 429; 9 Mete. (Mass.) 366; 103 
Mass. 406. 

Acargo is the loading of a ship or other vessel, 
the buik of which is to be ascertained from the 
capacity of theshiporvessel The word embraces 
all that the vessel is‘eapable of carrying. 38 Rob. 
(N. YV.) 173. 

The term may be applied in such a sense 
as to include passengers, as well as freight, 
but in a technical sense it designates goods 
only. 


CARTAGIUM. Inold Englishlaw. Car- 
riage; the carrying of goods or other things 
for the king, 


CARISTIA. Dearth, scarcity, dearness. 
Cowell, 


CARK. Inold Englishlaw. <A quantity 
of wool, whereof thirty make a sarplar 
(The latter is equal to 2,240 pounds in 
weight.) St, 27 Hen. Vl. «2. Jacob. 


CARLISLE TABLES. Life and annu- 
ity tables, compiled at Carlisle, England, 
about 1780. Used by actuaries, etc. 


CARMEN. In the Roman law. Liter- 
ally, a verse or song. A formula or form of 
words used on yarious occasions, as of di- 
vores. Tayl. Civil Law, 349, 


CARNAL. Of the body; relating to the 
body; fleshly; sexual. 


CARNAL KNOWLEDGE. The act of 
a man in baving sexual bodily connection 
with a woman. 


Carnal knowledge and sexual intercourse held 
equivalent expressions. 22 Obio St. 541. 

From very early times, in the law, as in common 
speech, the meaning of the words “carnal knowl- 
edge” of a woman bya man has been sexual badily 
conuection; and these words, without more, have 
been used in that sense by writers of the highest 
guthority on criminal law, when undertaking to 
give a fulland precise definition of the crime of 
rape, the bighest crime of this character. 97 Mass. 
6l. 


174 


CARRIER 


knew. Technical words in indictments for 
rape, and held essential. 1 Hale, P. C. 637- 
639. 


CARNALLY KNEW. In pleading. A 
technical phrase essential in an indictment 
to charge the defendant with the crime of 
rape. 


CARNO. In old English law. 
munity or privilege. Cowell. 


An im- 


CAROOME. InEnglishlaw. A license 
by the lord mayor of London to keep a cart. 


CARPEMEALS. Cloth made in the 
northern paris of England, of a coarse kind, 
mentioned in 7 Jac. 1. c. 16. Jacob. 


CAREERA. In Spanish law. A car- 
riage-way; the right of a carriage-way. Las 
Partidas, pt. 3, tit. 31, 1. 3. 


CARRIAGE. A vehicle used for the 


| transportation of persons either for pleasure 


or business, and drawn by horses or other 
draught animals over the ordinary streets 
and highways of the country; not including 
cars used exclusively upon railroads or street 
railroads expressly constructed for the use of 
such curs. 63 Wis. 97, 23 N. W. Rep. 425; 
8 Kan. 84; 47 N.Y. 122; 46 N. H. 525; 5Q 
Dive 76. 

The act of carrying, or acontract for trans- 
poriation of persons or goods. 

The contract of carriage is a contract for 
the conveyance of property, persons, or mes- 
sages from one place to another. Civil Code 
Cal. § 2055; Civil Code Dak. § 1208. 


CARRICLE, or CARRACLE. A ship 


| of great burden. 


CARNALITER. In old criminal law. | 


Carnally. Carnatiter cognovit, 


CARRIER. One wio undertakes to 
transport goods from one place te another. 
i Pars. Cont. 682. 

One who carries or agrees to carry the 
gouds of another, from one place to another, 
for hire, or without hire. 

Carriers are either common or private. 
Private carriers are persons who undertake 
for the transportation ina particular instance 
only, not making it their vocation, nor hold- 
ing themselves out to the public as ready to 
act for all who desire their services. 

To bring a person within the description of 
a common carrier, he must exercise it asa 
public employment; he must undertake to 
carry goods for persons generally; and he 
must hold himself out as ready to transport 
goods for hire, as a business, not as a casual 


carnally , occupation, pro hie vice, 


“GARRY AWAY” 


“CARRY AWAY.” <A technical phrase 
tm an indictment for larceny, translating the 
Lat. asportavit. 7 Gray, 45. 


CARRYING AWAY. In criminal law. 
The act of removal or asportation, by which 
the crime of larceny is completed, aud which 
is essential to constitute it. 


CARRYING AWAY INFANT FE- 
MALES, See ABDUCTION, 


CARRYING COSTS. A verdict is said 
to carry costs when the party for whom the 
verdict is given becomes entitled to the pay- 
ment of his costs as incident to such verdict. 


CART. A carriage for luggage or burden, 
with two wheels, as distinguished from a 
wagon, which has four wheels. The vehicle 
in which criminals are taken to execution. 

This word, in its ordinary and primary ac- 
ceptation, signifies a carriage with two 
wheels; yet it has alsoa more extended sig- 
nification, and may mean a carriage in gen- 
eral, 22 Ala, 624. 


CART BOTE. Wood or timber which a 
tenant is allowed by law to take from an es- 
tate, for the purpose of rep:iring instru- 
ments, (including necessary vehicles, ) of hus- 
bandry. 2 BL Comm. 85. 


CARTA. In old English law. <A char- 
ter, or deed. Any written instrument. 

In Spanish law. A letter; a deed; 8 
power of attorney. Las Partidas, pt. 3, tit. 
18, 1. 30. 


CARTA DE FORESTA. In old En- 
glish law. The charter of the forest. More 
commonly called “ Charta de Poresta,” (q. 0.) 


CARTE. In French marine law. A 
ehart. 


CARTE BLANCHE. A white sheet of 
paper; an instrument signed, but otherwise 
left blank, A sheet given to an agent, with 
the principal’s signature appended, to be 
filled up with any contract or engagement as 
the agent may see ft. Hence, metaphorical- 
ly, unlimited authority. 


CARTEL. An agreement between two 
hostile powers for the delivery of prisoners 
oer deserters. Also a written challenge to 
fight a duel. 


CARTEL-SHIP. A vessel commissioned 
in time of war to exchange the prisoners of 
any two hostile powers; also to carry any 
particular proposal from one to another. For 
this reason, the officer who commands her is 


175 


a ee ee Ee ee 


CASE 


particularly ordered to carry no cargo, am- 
munition, or implements of war, except a 
single gun for the purpese of signals. Enc. 
Lond, 


CARTMEN. Carriers who (ransport 
goods and merchandise in carts, usually for 
short distances, for hire. 


CARTULARY. <A piace where papers 
or records are kept. 


CARUCA, or CARUA. A plow. 


CARUCAGH. In old English law. A 
kind of tax or tribute anciently imposed upon 
every plow, (carwe or plow-lind,) for the D 
public service. Spelman. 


CARUCATA. Acertain quantity of land 
used as the basis for taxation. As much 
land as may be tilled by a single plow ina 
year anda day. Also, a team of cattle, or a 
eart-lowd. 


CARUCATARTIUS. One who held landa 
in carvage, or plow-tenure. Cowell. 


CARUE. A carve of land; piow-lana) F 
Britt. ¢. 84. 


CARVAGEH. The same as carucage, (9. 
v.) Cowell. 


CARVE. In old English law. A crea 
cate or plow-land. 


CAS FORTUIT. Fr. 
surance, 
accident. 


CASATA. Inold Englishiaw. A house 
wilh land sufficient for the support of one 
family. Otherwise called “hida,” a hide of 
land, and by Bede, “familia.” Spelman. 


CASATUS. A vassal or feudal tenant 
possessing a casata,; that is, having a house, 
household, and property of his own. 


CASH. 1. A general term for an action, J 
cause, suit, or controversy, al law or in equiby. 
A question contested before a court of jus- 
tice. 

The primary meaning of “ease” {ts “cause, "K 
When applied to legal proceedings, it imports q 
state of facts which furnishes occasion for the ex- 
ercise of the jurisdiction of a court of justice. In 
its generic sense, the word includes all cases, spe- 
cial or otherwise, 12 N. Y. 592, 5936. 

2. A statement of the facts involved ina L 
transaction or series of transactions, drawa 
up in writing ina technical form, for sub- 
mission to a court or judge for decision or 
opinion. Under this meaning of the term 
are included a “‘case made” for a motion for 
new trial, a “ease reserved” on the trial of 


In the law of in- 
A fortuitous event; an inevitable H 


CASE 


176 


CASHIER 


acanse, an “agreed case” for decision with- | for the parties, where the law of the case is 


out trial, ete, 

3. A form of action which lies to recover 
damages for injuries for which the more an- 
cient forms of action will not lie. Steph. 
Pl. 15, See Tresrass ON THE CASE. 


CASH AGREED ON. A formal writ- 
ten enumeration of the facts in a case, as- 
sented to by both parties as correct and com- 
plete, and submitted to the court by their 
agreement, in order that a decision may be 
rendered, without a trial, upon the court's 
conclusions of law upon the facts ws stated. 


CASE FOR MOTION. In English di- 
vorce and probate practice, when a party de- 
sires to make a motion, le must file, among 
other papers, a case for motion, containing 
an abstract of the proceedings in the suit or 
auction, a statement of the circumstances on 
which the motion is founded, and the prayer, 
or nature of the decree or order desired. 
Browne, Div. 251; Browne, Prob. Pr. 295. 


CASE LAW. A professional name for 
the aggregate of reported cases as forming 
a body of jurisprudence; or for the law of a 
particular subject as evidenced or formed by 


the adjudged cases; in distinction to statutes | 


and other sources of law. 


CASE ON APPEAL. In American 
practice. Before the argument in the ap- 
pellate court of a cuse brought there for re- 
view, Lhe appellant’s counsel prepares a doc- 
ument or briei, bearing this name, for the 
information of the court, detailing the testi- 
mony and the proceedings below. 

In Engiish practice. The “case on ap- 
peal” is a printed statement prepared by each 
of the parties to an appeal to the house of 
lords or the privy council, setting out me- 
thodically the facts which make up his case, 
with appropriate references to Lhe evidence 
printed in the “appendix.” The term also 
denotes a written statement, prepared and 
transmitted by an inferior court or judge, 
raising a question of law for the opinion of a 
superior court. 


CASH RESERVED. A statement in 
writing of the facts proved on the trial of a 
cause, drawn up and settled by the attorneys 
and counsel for the respective parties under 
the supervision of the judge, for the purpose 
of having certain points of law, which arose 
at the trial, and could not then be satisfac- 
torily decided, determined upon full argu- 
ment before the court in banc. This is oth- 
erwise called a “special case;” and it is usual 


doubtful, to agree that the jury shall find a 
general verdict for the plaintiff, subject to 
the opinion of the court upon such a case to 
be made, instead of obtaining from the jury 
aspecial verdict. 3 El. Comm. 378; 3 Steph. 
Comm. 621; Steph. Pl. 92, 93; 1 Burrill, Pr. 
242, 463. 


CASE STATED. In practice. An agree- 
ment in writing, between a plaintiff and de- 
fendant, that the facts in dispute between 
them are as therein agreed upon and set forth. 
8 Whart, 143. Acaseagreedupon. See Case 
AGREED ON. 


CASH TO MOVE FOR NEW TRIAL. 
In practice. A case prepared by the party 
against whom a verdict has been given, up- 


| on which to move the court to set aside the 


verdict and grant a new trial. 


CASH. Ready money; whatever can ba 
used as money without being converted inta 
another form ; that which circulates as money, 
including bank-bills. 

Cash payment means the opposite of credit 
6 Md. 37; 24 N. J. Law, 96. 


CASH-ACCOUNT. A record, in book. 
keeping, of all cash transactions; an account 
of moneys received and expended, 


CASH-BOOK. In book-keeping, an ac- 
count-book in which is kept a record of all 
cash transactions, or all cash received and ex- 
pended. ‘The object of the cash-book is to 
afford a constant facility to ascertain the true 
state of a man’s cash. Pardessus, n. 87. 


CASH-NOTE. In England. A bank- 
note of a provincial bank or of the Bank of 
England. 


CASH-PRICEH, A price payable in cash 
at the time of sale of property, in opposition 
to a barter or a sale on credit. 


CASHIER, n. An officer of a moneyed in- 
stitution, or commercial house, or bank, who 
is intrusted with, and whose duty it is to take 
care of, the cash or money of such institution 
or bank. 4 

The cashier of a bank is the executive of- 
ficer, through whom the whole financial op- 
erations of the bank are conducted. He ree 
ceives and pays out its moneys, collects and 
psys its debts, and receives and transfers its 
commercial securities. Tellers and other 
subordinate officers may be appointed, but 
they are under his direction, and are, as it 
were, the arms by which designated portions 
of his various functions are discharged. The 


CASHIER 177 


directors may limit his authority as they deem 
proper, bat this would not affect those tu 
whoro the limitation was unknown. 10 Wall, 
650. 


CASHIER, v. In military law. To de- 
prive a military officer of his rank and office. 


CASHLITE. An amercement -or fine; a 
tmoulct. 
CASSARE. To quash; to render void; 


to break. 


CASSATION. In French law. Annul- 
ling; reversal; breaking the force and va- 
lidity of ajudgment. <A decision emanating 
from the sovereign authority, by which a de- 
cree or judgment in the court of jast resort is 
broken or annulled. Merl, Repert, 


CASSATION, COURT OF. (Fr. cour 
decassation.) The highest court in France; 
80 termed from possessing the power to quash 
(easser) the decrees of inferior courts. It is 
a court of appeal in criminal as well as civil 
cases. 


CASSETUR BILLA. 
be quashed.) In practice. 


(Lat. That the bill 
The form of the 


judgment for the defendant on a plea in abate- | 


ment, where the action was commenced by 
bill, (d¢/ia.) 3 Bl. Comm. 303; Steph. Pl. 
128, 181. The form of an entry made by a 
plaintiff on the record, after a plea in abate- 
ment, where he found that the plea could not 
be confessed and avoided, nor traversed, nor 
demurred to; amounting in fact to a discon- 
tinuance of the action. 2 Archb. Pr. K. B. 
8, 286; 1 Tidd, Pr. 683. 


CASSETUR BREVE. ({.at. That the 
writ be quashed.) In practice. The form of 
the judgment for the defendant on a plea in 
abatement, where the action was commenced 
by original writ, (dreve.) 3 Bl. Comm. 303; 
Steph. Pl. 107, 109. 


CASSOCK, or CASSULA. A garment 
worn by 4 priest. 


CAST, 0 In old English practice. To 
allege, offer, or present; to proffer by way of 
excuse, (as to “cast an essoin.”) 

This word is now used as a popular, rath- 
er than a technical, term, in the sense of to 
overcome, overthrow, or defeat in a civil ac- 
tion at law. 


CAST, p.p. Overthrown, worsted, or de- 
feated in an action. 


CASTELL, or CASTLE, A fortressin a 
town; the principal mansion of a nobleman, 
8 Inst. 31. 

AM. DICT. LAW—12 


CASTRATION 


CASTELLAIN. In old English law. 
The lord, owner, or captain of a castle: the 
constable of a fortified rouse; a person hav- 
ing the custody of one of the crown man- 
sions; an officer of the forest. 


_. CASTELLANUS. A _ ecastellain; the 
keeper or constable of a casile. Spelman. 


CASTELLARIUM, CASTELLATUS, 
In old English law. The precinct or juris- 
diction of a castle. Blount. 


CASTELLORUM OPERATIO. In 
Saxon and old English law. Castle work. 
Serviee and labor done by inferior tenants for [} 
the building and upholding castles and pub- 
lic places of defense. One of the three nee- 
essary charges, (trinoda necessitas,) to which 
all lands among the Saxons were expressly 
subject. Cowell. E 


CASTIGATORY. An engine used to 
punish women who have been convicted of 
being common scolds. It is sometimes called 
the “trebucket,” “tumbrel,” “ducking- F 
stool,” or “cucking-stool.” 


CASTING. Offering; alleging by way 
of excuse. Casting an essoin was alleging 
an excuse for not appearing in court to an- 
swer an action. Holthouse. 


CASTING VOTE. Where the votes of 
a deliberative assembly or legislative body 
are equally divided on any question or mo- W 
tion, it is the privilege of, the presiding ofli- 
cer to cast one vote (if otherwise he would 
not be entitled to any vote) on either side, or 
to cast one additional vote, if he has already 
voted as a member of the body, This is | 
called the “casting vote.” 


By the common law, a casting vote sometimes 
signifies the single vote of a person who never 
votes; but, in the case of an equality, sometimes 
the double vote of a person who first votes with J 
the rest, and then, upon an equality, creates a ma 
jority by giving a second vote. 48 Barb. 606. 


ep) 


CASTLEGUARD. In feudal law. An 
impusition anciently Jaid upon such persons K 
as lived within a certain distance of any cas- 
tle, towards the maintenance of such as 
watched and warded the castle. 


CASTLEGUARD RENTS. Inold En- i: 
glish law. Rents paid by those that dwelt 
within the precincts of a castle, towards the 
maintenance of such as watched and warded 
it. 

CASTRATION. The act of depriving a il 
man of the testicles. 


CASTRENSIS 


CASTREWSIS. In the Roman law. Re- 
lating to the camp or military service. 

Custrense peculium, a portion of property 
which a son acquired in war, or from his 
connection with the camp. Dig. 49, 17. 


CASTRUM. Lat. In Romanlaw. A 
camp. : 

In old Enelisn luw. 
fol. 698. 
Coke, 88. 


CASU CONSIMILI, In old English 
law. A writ of entry, granted where tenant 
by the curtesy, or tenant for life, alienated 
in fea, or in tail, or for another's life, which 
was brought by him in reversion against the 
party to whom such tenant so alienated to 
his prejudice, and in the tenant’s life-time. 
Terines de la Ley. 


CASU PROVISO. A writ of entry 
framed under the provisions of the statute of 
Gloucester, (6 Edw. I.,) c. 7, which lay for 
the benefit of the reversioner when a tenant 
in dower aliened in fee or for life. 


CASUAL. That which happens accident- 
ally, or is bronght about by causes unknown; 
fortuitous; the result of chance. 


CASUAL EJECTOR. In practice. The 
nominal defendant in an action of ejectment; 
80 called because, by a fiction of law peculiar 
to that action, he is supposed to come casu- 
aily or by accident upon the premises, and to 
turn out or eject the lawful possessor. 3 Bl. 
Comm. 208; 8 Steph. Comm. 670, 


CASUAL EVIDENCE. A phrase used 
to denote (in contradislinetion to “preap- 
peinted evidence”) all such evidence as hap- 
pens to be adducible of a fact or event, but 
which was not prescribed by statute or oth- 
erwise arranged beforehand to be the evi- 
deuce of the fact or event. Brown. 


CASUAL PAUPER. A poor person who, 
in England, applies for relief in a parish oth- 
er than that of his settlement. The ward in 
the work-house to which they are admitted 
is called the “casual ward.” 


CASUAL POOR. In English 
Those who are not settled in a parish. 

Such poor persons as are suddenly taken 
sick, or meet wilh some accident, when away 
from home, and who are thus providentially 
thrown upon the charities of those among 
whom they happen to be. 17 N, J. Law, 
405, 


CASUALTIES OF SUPERIORITY. 
Im Scotch Jaw, Payments from an inferior 


? 
A castle. Bract. 
A castle, including a manor. 4 


law. 


16 


OASUS 


to a superior, that is, from a tenant to his 
lord, which arise upon uncertain events, as 
opposed to the payment ofrent at fixed and 
stated times. Bell, 


CASUALTIES OF WARDS. In Scotch 
law. The mails and duties due to the supe- 
rior in ward-holdings, 


CASUALTY. Inevitable accident; an 
event not to be foreseen or guarded against. 
A loss froin such an event or cause; as by 
fire, shipwreck, lightning,ete. Story, Bailm. 
§ 240. 

CASUS. Lat. Chance; accident; an 
event; & case; a case contemplated. 


CASUS BELLI. An occurrence giving 
rise to or justifying war, 


CASUS FQQ!DERIS. In international 
law. The case of the treaty. The particu- 


| lar event or situation contemplated by the 


treaty, or stipulated for, or which comes 
within its terms. 

In commercial law. The case or event 
contemplated by the parties to an individual 
contract, or stipulated for by it, or coming 
within its terms. 


CASUS FORTUITUS. Lat. An inev- 
itable accident, a chance occurrence, or for- 
tuitous event. A toss happening in spite 
of all human effort and sagacity. 38 Kent, 
Comm, 217, 300; Whart. Neg, §§ 118, 553. 


Casus fortuitus non est sperandus, et 
nemo tenetur devinare. A fortuitous 
event is not to be expected, and no one is 
bound to foresee it. 4 Coke, 66. 


Casus fortuitus non est supponendus, 
A fortuitous event is not to be presumed. 
Hardr. 82, arg. 


CASUS MAJOR. In the civil law. A 
casualty; an extraordinary casualty, as fire, 
shipwreck, etc. Dig, 44, 7, 1, 4. 


CASUS OMISSUS. A case omitted; an 
event or contingency for which no provis- 
ion is made; particularly a case not pro- 
vided for by the statute on the genera! sub- 
ject, and which is therefore left to be gov- 
erned by the common law. 


Casus onlissus et oblivioni datus dis- 
positioni juris communis relinquitur. 
A case omitted and given to oblivion (for- 
gotten) is left to the disposal of the common 
law. 5 Coke, 38. <A particular case, loft 
unprovided for by statute, must be disposed 
of aceording to the law as it existed prior te 
such statute, Broom, Max. 46. 


CASUS 


Casus omissus pro omisso habendus 
est. A case omitted is to be held as (inten- 
tionally) omitted. Tray. Lat. Max. 67. 


CAT, An instrument with which crimi- 
nals are flogged. It consists of nine lashes of 
whip-cord, tied on to a wooden handle. 


CATALLA,. Inold English law. Chat 
tels. The word amoug the Normans prima- 
rily signified only beasts of husbandry, or, as 
they are still called, “cattle,” but, in a sec- 
ondary sense, the term was applied to all 
movabies in general, and not only to these, 
but to whatever was not a fief or feud. 
Wharton, 


Catalla juste possessa amitti non pos- 
sunt. Chattels justly possessed cannot be 
lost, Jenk. Cent. 28. 


CATALLA OTIOSA. Dead goods or 
chattels, as distinguished from animals. Idle 
cattle, that is, such as were not used for 
working, as distinguished from beasts of the 
plow; called also animalia otiosa, Bract. 
fols, 217, 2176; 8 Bl. Comm. 9. 


Catalla reputantur inter minima in 
lege. Chattels are considered in law among 
the least things. Jenk. Cent. 52. 


CATALLACTICS. Thescience of polit- 
Ical economy. 


CATALLIS CAPTIS NOMINE DIS- 
TRICTIONIS. An obsolete writ that lay 
where a house was within a borough, for 
rent issuing out of the same, and which war- 
ranted the taking of doors, windows, etc., by 
way of distress, 


CATALLIS REDDENDIS. For the re- 
turn of the chattels; an obsolete writ that 
lay where goods delivered to a man to keep 
till a certain day were not upon demand re- 
delivered at the day. Reg. Orig. 39. 


CATALLUM. Achattel. Most frequent- 
ly used in the plural form, catadla, (q. v.) 


CATALS, Goods and chattels. See Ca- 
TALLA. 
CATANEUS. A tenant in capite. A 


tenant helding immediately of the crown. 
Spelman. 


CATAPULTA. Acatapult. A warlike 
engine to shoot darts; a cross-bow. 


CATASCOPUS. An old name for an 
archdeacon. 


173 


CATHOLIC CREDITOR 


extravagant rate, to an heir or any one who 
has an estate in reversion or expectancy, to 
be repaid on the vesting of his interest; or a 
similar unconscionable bargain with such 
person for the purchase outright of his ex- 
pectancy. 


CATCHINGS. Things caught, and in 
the possession, custody, power, and dominion 
of the party, with a present capacity to use 
them for his own purposes. The term in- 
cludes blubber, or pieces of whale flesh cut 
from the whale, and stowed on or under tlie 
deck of aship. A policy of insurance upon 
outfits, and ecatchings substituted for the out- 
fits, ina whaling voyage, protects the blubber. 
1 Story, 603; 4 Law Rep. 297. 


CATCHLAND. Land in Norfolk, 30 
called because it is not known to what parish 
it belongs, and the minister who first seizes 
the tithes of it, by right of preoccupation, en- 
joys them for that year. Cowell. 


CATCHPOLL. A name formerly given 
to a sheriff's deputy, or to a constable, or 
other ollicer whose duty it is to arrest per- 
sons. Je was asort of serjeant. The word 
is nob now in use as an official designation. 
Minshew. 


CATEGORICAL. A torm of logic, mean- 
ing direct; unqualified; unconditional. 


CATEGORY. In logic. <A series or or- 
der of all the predicates or attributes contained 
under a genus. 


CATER COUSIN. <A expression used to 
designate a very distant relation. 


CATHEDRAL. In English ecclesiastical 
law. The chureh of the bishop of the dio- 
cese, in which is his cathedra, or throne, and 
his special jurisdiction; in that respect the 
principal church of the diocese. 


CATHEDRAL PREFERMENTS. In 
Ienglisu ecclesiastical law. All deaneries, 
archdeaconries, and canonries, and generally 
all dignities and offices in any cathedral or 
collegiate church, below the rank of a bishop. 


CATHEDRATIC. In English ecclesiag- 
tical law. A sum of 2s. paid to the bishop 
by the inferior clergy; but from its being 
usually paid at the bishop’s syzod, or visita- 
tion, if is common!ly named syzodals. Whar- 
ton. 


CATHOLIC CREDITOR. In Scoteh 
Jaw. A creditor whose debt is secured on al! 


CATCHING BARGAIN. A bargain by | or several distinct parts of the debtor’s prop- 
which money is loaned, at an extortionate or | erty. Bell. 


Mi 


CATHOLIU EMANCIPATION ACT 


CATHOLIC EMANCIPATION ACT, 
The slatute of 10 Gea. LV. ¢. 7, by which Ro- 
man Catholics were restored, in general, to 
the full enjoyment of all civil rights, except 
that of holding ecclesiastical offices, and cer- 
tain high appointments inthestate. 3Steph. 
Comm. 109, 


CATONIANA REGULA. In Roman 
jaw. The rule which is commonly expressed 
in the maxim, Quod ab inttio non valet 
tractu temports non convalebit, meaning that 
what is at the beginning void by reason of 
some technical (or other) legal defect will not 
become valid merely by length of time. The 
rule applied to the institution of heredes, 
the bequest of legacies, and such like. The 
rule is not without its application also in En- 
glish law; e. g., a married woman's will (be- 
ing void when made) is not maie valid mere- 
ly beeause she lives to become a widow. 
Brown. 


CATTLE. A term which includes the 
domestic animals generally; all the animals 
used by man tor labor or food. 

Animals of the bovine genus. Ina wider 
sense, all domestic animals used by man for 
labor or food, including sheep, (2 Sawy. 148,) | 
and hogs, (21 Wall, 294.) 


CATTLE-GATE. In English law. A 
right to pasture cattle in the land of another. 
It is a distinct and several interest in the 
land, passing by lease and release. 13 East, 
159; 5 Taunt. 811. 


CATTLE-GUARD. A device to prevent 
cattle from straying along a railroaid-track at 
a highway-erossing. Century Dict. See 31 
Kan. 837, 2 Pac. Rep. 800. 


CAUDA TERRA. A land’s end, or the 
bottom of a ridge in arable land. Cowell. 


180 


= 


CAULCEIS. Wighroads or ways pitched 
with flint or other stones. 


CAUPO. Inthecivillaw. Aninnkeeper. 
Dig. 4, 9, 4, 5. 


CAUPONA. In the civil law. An inn | 
or tavern. Inst. 4, 5, 3. 

CAUPONES. In the civil law. Inn- 
keepers, Dig. 4, 9; Id. 47, 5; Story, Ag. 
Ԥ 458. 

CAURSINES. Italian merchiunts who 


came into Eng)and in the reign of Henry 
IIJ., where they established themselves as 
money lenders, but were soon expelled for 
their usury and extortion. Cowell; Biount. 


CAUSA 


CAUSA. 1. A cause, reason, occasion, 
motive, or inducement. 

2. In the civil law and in old English 
law. ‘The word signified a source, ground, 
or mode of acquiring property; hence a title; 
one’s title to property. Thus, “Vitulus est 
Justa causa possidendt id quod nosirum 
est,” title is thelawful ground of possessing 
that which is ours. 8 Coke, 153. Ses 
Mackeld. Rom. Law, §§ 242, 283. 

3. A condition; a consideration; motive 
for performing a juristic act. Used of con- 
tracts, and found in this sense in the Seotch 
law also. Bell. 

4. In old English law. A canse;a suit 
or action pending. Causa teustumentaria, a 
testamentary cause. Causa matrimonialis, 
a matrimonial cause. Bract, fol. 61. 

5. In old European law. Any movable 
thing or article of property. 

6. Used with the force of a preposition, it 
means by virtue of, on account of. Also 
with reference to, in contemplation of. 
Causa mortis, in anticipation of death. 


Causa causs est causa causati. The 
cause of a cause is the cause of the thing 
caused. 12 Mod. 639. The cause of the 
cause is to be considered as the eause of the 
effect also. 


CAUSA CAUSANS. The immediate 
cause; the last link in the chain of causa- 
tion, 


Causa causantis, causa est causati. 
The cause of the thing causing is the cause 
of the effect. 4 Camp. 284; 4 Gray, 398, 


CAUSA DATA ET NON SECUTA, 
In the civil law. Consideration given and 
not followed, that is, by the event upon 
which it was given. The name of an ac- 
tion by which a thing given in the view of a 


| certain event was recluimed if that event 


did noi take place. Dig. 12, 4; Cod. 4, 6. 


Causa ecclesia publicis equiparatur; 
et summa est ratio quze pro religione 
facit. The cause of the chureh is equal to 
public cause; and paramount is the reason 
which mukes for religion, Co. Litt. $41. 


Causa et origo est matoria neyotit, 
The cause and origin is the substance of the 
thing; the cause and origin of a thing area 
material partof it. Thelaw regards the orig- 
inal act. 1 Coke, 99. 


CAUSA HOSPITANDI. For the pur- 
pose of being entertained asa guest. 4 Maule 
& 5. 310. 


CAUSA JACTITATIONIS MARITA- | 
GII. A form of action which anciently lay 
against a party who boasted or gave out that 
he or she was married to the plaintiff, where- 
by a common reputation of their marriage 
might ensue, 3 Bl. Comm. 93. 


CAUSA MATRIMONIL PRA&LO- 
CUTI. A writ lying where a woman has 
given lands to a man in (ee-simple with the 
intention that be shall marry her, and he re- 
fuses so to do within a reasonable time, upon 
suilable request. Cowell. Now obsolete. 3 
Bl. Comm. 185, note. 


CAUSA MORTIS. In contemplation of 
approaching death. In view of death. Com- 
monly occurring in the phrase donatio causa 
mortis, (g. v.) 


CAUSA PATET. The reason is open, 
obvious, plain, clear, or manifest. A com- 
mon expression in old writers. Perk. c, 1, 


8§ 11, 14, 97. 


CAUSA PROXIMA. 
nearest, or lalast cause, 


The immediate, 


Causa proxima, non remota, spectatur. 
The immediate, not the remote, cause, is 
looked at, or considered. 12 East, 648; 3 
Kent, Comm. 302; Story, Bailm. § 515; Bae. 
Max. reg. 1. 


CAUSA REI. In the civil law. The 
fecessions, appurtenances, or fruits of a 
thing; comprehending ali that the claimant 
of # principal thing can demand from a de- 
fendant in addition thereto, and especially 
what he would have had, if the thing had 
not been withheld from him. Inst. 4, 17, 3; 
Mackeld. om. Law, § 166. 


CAUSA REMOTA,. A remote or mediate 
cause; a cause operating indirectly by the in- 
teryention of other causes, 


CAUSA SCIENTIA| PATET. The 
reason of the knowledge is eviient. A tech- 
nical phrase in Sculch practice, used in depo- 
sitions of witnesses. 


CAUSA SINE QUA NOW. A necessary 
or inevitable cause; a cause without which 
the effect in question could net have hap- 
pened. 


CAUSA TURPIS. <A base (immoral or 
illegal) cause or consideration. 


Causa vaga et incerta nen est causa 
rationabiliz. 6 Coke,57. A vagueand un- 
eertain cause is not a reasonable causa. 


CAUSA 181 


CAUSE 


Cause dotis, vite, libertatis, fisct sunt 
inter favorabilia in lege. Cuuses of dow- 
er, life, tiberty, revenue, are among thethings 
favored inlaw. Co. Litt. 341. 


CAUSAM WNOBIS SIGNIFICES 
QUARE. A writ addressed to a mayor ofa 
town, ete,, who was by the king’s writ com- 
mended to give seisin of lands to the king’s 
grantee, on his delaying to do it, requiring 
hitn to show canse why he so delayed the per- 
formance of his duty. Blount; Cowell. 


CAUSARB. In the civil and old En- 
giish law. To he engaged in a suit; to liti- 
gate; to conduct a cause. 


CAUSATOR. In old Buropean law. 
One who manages or Ltigates another's 
cause, Spelman. 


CAUSE, That which produces an effect; 
whatever moves, impels, or leads. The ori- 
gin or foundation of a thing, as ofa suit or ac- 
tion; a ground of action. 1N. Y,. 47. 

The consideration of 4 contract, that is, 
the inducement to it, or motive of the con- 
tracting party for entering into it, is, in the 
civil and Scotch law, culled tha “cause.” 


The civilians use the term “canse,” in relation 
to obligations, in the sume sense as the word “con- 
sideration” is used in the jurisprudence of England 
and the United States. It means the motive, tha 
inducement to the agreement,—id yuod tnducet ad 
contrahendum. In contracts of mutual interest, 
the cause of the engagement is the thing giveu or 
done, or engaged to be given or dons, or the rish 
incurred by one of the parties. 1 La. Ann. 192. 


In pleading. Reason; motive; matter of 
exctlse or justification. 


In practice. A suit, litigation, or action, 
Any question, civil or criminal, contested 
before a court of justice, 

Cause imports a judicial procecding entire, and 
is nearly synonymous with ty in Latin, or suit in 
English. Although allied to the word “case,” it 
differs irom itin the application of its meaning. 
A cause is pending, postponed, appealed, gained, 
lost, ete.; whereas a case is made, rested, argued, 
decided, etc. Case is of a more limited significa 
tion, importing a collection of facts, with the con- 
clusico of law thereon. Both terms may be used 
with propriety in the same sentence; ¢. g., on the 
trial of the caizse, the plaintiff introduced certain 
evidence, and there rested his case. 18 Conn. 10. 

A distinction is sometimes taken between 
“cause” and “action.” Burrill observes that a 
cause is not, ike an action or suit, said to be com- 
menced, noris an uction, like a cause, said to be 
tried. But, if there is any substantial difference 
between these terms, it must lie in the fact that 
“action” refers more peculiarly to the legal pro- 
cedure of a controversy; “cause” to its merits or 
the state of facts involved. Thus, we cannot say 
“the exuse should have been repievin.” Nar 


CAUSE-BOOKS 


would it be correct to say “the plaintiff pleaded 
his own action.” 


CAUSE-BOOKS. Books kept in thecen- 
tral office of the English supreme court, in 
which are entered all writs of summons 
issued in the office. HRules of Court, v 8. 


CAUSE LIST. In English practice. A 
printed roll of actions, to be tried in the 
order of their entry, with the names of the 
solicitors for each litigant. Similar to the 


calendar of causes, or docket, used in Amer: | 


ican courts. 


CAUSE OF ACTION. Matter for 
which an action may be brought. The 
ground on which an action may be sustained. 
The right to bring a suil. 

Cause of action is properly the ground oa which 
an action can be maintained; as when wo say that 
such a person has no cause of action. But tho 
phrase is often used to signify the matter of the 
complaint or claim on which a given action is in 
fact grounded, whether or not legally maintain- 
able. Mozley & Whitley. 

It sometimes means a person having a right of 
action. Thus, where a legacy is left to a married 
woman, and she and her husband bring an action 
to recover it, she is called in the old books the 
“meritorious cause of action.” 1H. Bl. 108. 

\ Theterm is synonymous with right of action, 
right of recovery. 26 How. Pr. 501. 

Cause of action is not synonymous with chose in 
aciion; the latter includes debts, etc., not due, and 
even stocks. 10 How, Pr. 1. 


CAUSES CELEBRES. Celebrated 
cases. A work containing reports of the de- 
cisions of interest and importance in French 
courts in the seventeenth and eighteenth 
centiries. 

Secondarily a single trial or decision is 
often called a “cause célbre,” when it is re- 
markable on account of the parties involved, 
or the unusual, interesting, or sensational 
character of the facts. 


CAUSIDICUS. In the civil law. A 
pleader; one who argued a cause ove tenus. 


CAUTELA. Lat. 
ilance; prevision. 


Care; caution; vig- 


CAUTIO. In the civiland French law. 
Security given for the performance of any 
thing; bail; a bond or undertaking by way 
of surety. Also the person who becomes a 
surety. 

In Scotch law. A pledge, bond, or other 
security for the performance of an obligation, 
or completion of the satisfaction to be ob- 
tained by a judicial process. Bell. 


182 


CAVEAT 


CAUTIO FIDEJUSSORIA. Security 
by means of bonds or pledges entered into by 
third parties. Du Cange. 


CAUTIO PIGNORATITIA. Security 
given by pledge, or deposit, as plate, money, 
or other goods. 


CAUTIO PRO EXPENSIS. Security 
for costs, charges, or expenses. 


CAUTIO USUFRUCTUARIA. Secu- 
rity, which tenants for life give, to preserve 
the property rented free from waste and in- 
jury. Ersk. Inst. 2, 9, 59. 


CAUTION. In Scotch law, and in ad- 
miralty law. Surety; security; bail; an un- 
dertaking by way of surety. 6 Mod. 162, 
See CAUTIO. 


CAUTION JURATORY. In Scotch 
law. Security given by oath. That which 
@ suspender swears is the best he can afford 


in order toobtainasuspension. Ersk, Pract. 
4, 3, 6. 
CAUTIONARY. In Scotch law. An 


instrument in which a person binds himself 
as surely fer another. 


CAUTIONE ADMITTENDA. In En- 
glish ecclesiastical law. <A writ that lies 
against a bishop who holds an excommuni- 
cated person in prison for contempt, not- 
withstanding he offers sufficient caution or 
security to obey the orlers and command- 
ment of the church for the future. Reg. 
Orig. 66; Cowell. 


CAUTIONER. In Scotchlaw. A sure- 
ty; a bondsman. One who binds himself in 
a bond with the principal for greater securi- 
ty. He is still a cautioner whether the bond 
be to pay a debt, or whether he undertake to 
produce the person of the party for whom he 
is bound. Bell. 


CAUTIONNEMENT. In French law. 
The same as becoming surety in English law. 


CAUTIONRY. In Scotch law. 
ship. 


CAVEAT. Lat. Let him beware. A 
formal notice or warning given by a party 
interested to a court, judge, or ministerial 
officer against the performance of certain acts 
within his power and jurisdiction. This 
process may be used in the proper courts to 
prevent (Lemporarily or provisionally) the 
proving of a will or the grant of administra- 
tion, or to arrest the enrollment of a decree 
in chancery when the party intends to take 


CAVEAT 


an appeal, to prevent the grant of letters 
patent, ete. It isalsoused, in the American 
practice, as a kind of equitable process, to 
stay the granting of a patent for lands. 

In patent law. A Caveat is a formal 
written notice given to the officers of the pat- 
ent-office, requiring them to refuse letters 
patent on a particular invention or device to 
to any other person, until the party filing the 
caveat (called the “eaveator”) shall have an 
opportunity to establish lis claim to priority 
of invention. 


CAVEAT ACTOR. Let the doer, or 
actor, beware, 


CAVEAT EMPTOR. Let the buyertake 
care. This maxim summarizes the rule that 
the purchaser of an article must examine, 
judge, and test it for himself, being bound 
to discover any obvious defects or imperfec- 
tions. Hob. 99; Co. Litt. 102a. 


Caveat emptor, qui ignorare non deb- 
uit quod jus alienum emit. Hob. 99. 
Let a purchaser beware, who ought not to 
be ignorant that he is purchasing the rights 
of another. 


CAVEAT VENDITOR. In Roman 
lew. A maxim, or rule, casting the respon- 
sibility for defects or deficiencies upon the 
seller of goods, and expressing the exact op- 
posite of the common law rule of caveat emp- 
tor, See 18 Wend. 449. 

In English and American jurispru- 
dence. Caveat venditor is sometimes used 
a3 expressing, in a rough way, the rule 
which governs all those cases of sales to 
which caveat emptor does not apply. 


CAVEAT VIATOR. Let the traveler 
beware. This phrase has been used asa con- 
cise expression of the duty of « traveler on 
the highway to use due care to detect and 
avoid defects in the way. 10 Exch. 771, 
774. 


CAVEBATOR. One who files a caveat. 


Cavendum est a fragmentis. Beware 


of fragments. Lac. Aph. 26. 


CAVERE. Inthecivil and common law. 
To take care; to exercise caution; to take 
care or provide for; to provide by law; to 
provide against; to forbid by law; to give 
security; to give caution or security on ar- 
vest. 


CAVERS. Persons stealing ore from 
tines in Derbyshire, punishablein the bergh- 


183 


CELIBACY 


mote or miners’ court; also officers belong- 
ing to the same mines, Wharton, 


CAYA. In old English law. 
kay, key, or wharf. Cowell. 


A quay, 


CAYAGIUM. In old English law. Cay- 
age or kayage; a toll or duty anciently paid 


for landing goods at a quay or wharf. Cow- 
ell. 


CEAP. A bargain; anything for sale; a 
chattel; also cattle, as being the usual medi- 
um of barter. Sometimes used instead of 
ceapgild, (gq. 2.) 


CEAPGILD. Payment or forfeiture of 
an animal. An ancient species of forfeit- 
ure. 


CEDE. To yield up; to assign; to grant, 
Generally used to designate the transfer of 
territory from one government to another. 


E 


CEDENT. InScotchlaw. Anassignor. 
One who transfers a chose in action. 


. 


CEDO. I grant. The word ordinarily F 
used in Mexican conveyances to pass title to 
lands. 26 Cal. 88, 108. 


CEDULA. In old English law. 
schedule. 


In Spanish law. An act under private 
signature, by which a debtor admits the 
amount of the debt, and binds himself to dis- 
charge the same on a specified day or on de- 
mand, 

Also the notice or citation affixed to the 
door of a fugitive criminal requiring him to 
uppear before the court where the accusation 
is pending. { 


A 
iN 


iH 


CEDULE. In French law. The technic- 
al name of an act under private signature. 
3 La. Ann. 458. 


CELATION. In medical jurisprudence. J 
Concealinent of pregnancy or delivery. 


CELDRA. In old English law, a chal- 
dron. Inold Scotch law, a measure of grain, 
otherwise called a ‘chalder.” See 1 Kames, 
Eq. 215. 


iA 


CELEBRATION OF MARRIAGE. 
The formal act by which a man and woman 
take each other for husband and wife, accord- 
ing to law; the solemnization of a marriage. 
The term is usually applied toa marriage cer- 
emony attended with ecclesiastical functions. 


CELIBACY. The condition or state of Ni 
life of an unmarried person. 


L 


CELLERARIUS 


CELLERARIUS. A butler in a monas- 
tery; sometimes in universities called “man- 
ciple” or “caterer.” 


CEMETERY. A place of burial, differ- 
ing from achurchyard by its locality and in- 
cidents,—by its locality, as it is separate and 
apart from any sacred building used for the 
performance of divine service; by its inci- 
dents that, inasmuch as no vault or burying- 
place in an ordinary churchyard can be pur- 
chased for a perpetuity, in a cemetery a per- 
manent burial place can be obtained. Whar- 
ton. 

Six or more human bodies being buried at 
one place constitutes the place a cemetery. 
Pol, Code Cal. § 3106. 


CENDULA. Small pieces of wood laid 
in the form of tiles to caver the roof of a 
house; shingles. Cowell. 


CENEGILD. In Saxon law. An ex- 
piatory mulct or fine paid to the relations of 
a murdered person by the murderer or his 
relations, Spelman. 


CENELLA In old records. Acorns, 


CENNINGA. Anotice given bya buyer 
toa seller that the things which had been 
sold were claimed by another, in order that 
he might appear and justify the sale. Blount; 
Whishaw. 


CENS. In French Canadian law. An 
annual tribute or due reserved to a seignior 
or lord, and imposed merely in recognition of 
his superiority, Guyot, Inst. c. 9. 


CENSARIA. In oll English law. A 
farm, or house and land let at a standing 
Tent. 


| 
Cowell. 
CENSARII. Inold English law. Farm- 
ers, or such persons as were liable to pay a 
census, (tax.) Blount; Cowell. 


CENSERE. 
dain; to decree. 


In the Roman law. 
Dien50; 16,111. 


CENSITATRE. In Canadian law. A 
tenant by eens, (q. v.) 


To or- 


CHNSIVE, In Cinadian law. 
by cens, (q. v.) 


Tenure 


CENSO. Im Spanish and Mexican law. 
An annuity. A ground rent. The right 
which a person acquires to receive a certain 


annual pension, for the delivery which he 
makes to another of a determined sum of 
money or of an immovable thing. Civil 
Code Mex. art. 3206. See Schm. Civil Law, 


184 


CENSUS : 


149, 309; White, New Recop. bk. 2, ¢. 7, § 
4; 13 Tex. 055. 


CENSO CONSIGNATIVO. InSpanish 
and Mexican law. <A ecenyo (gq. v.) is called 
“consignativo” when he who receives the 
money assigns for the payment of the pension 
(annuity) the estate the fee in which he re- 
serves. Civil Code Mex. art. 3207. 


CENSO ENFITEUTICO. In Spanisa 
and Mexicanlaw. An emphyteutic annuity. 


| That species of censo (annuity) which exists 


where there is a right to rejuire of anothera 


certain canon or pension annually, on ac 


count of having transferred to that person 
forever certain real estate, but reserving the 
fee in the land. The owner who thus trans- 
fers the land is called the “ecnsualisto,” and 
the person who pays the annuity is called 
the “censatario.” Hall, Mex. Law, § 756. 


CENSUALES. In old European law. 
A species of ob/ati or voluntary slaves of 
churches or monasteries; those who, to pro- 
cure the protection of the church, bound 
theiselves to pay an annual tax or quit-rent 
only of their estates toa church or monas- 
tery, 


CENSUERE. In Roman law. They 
have decreed. The term of art, or technical 
term for the judgment, resolution, or decree 
of the senate. Tay]. Civil Law, 566. 


CENSUMETHIDUS, or CENSU- 
MORTHIDUS. A dead rent, like that which 
is called “mortmain.” Blount; Cowell. 


CENSURE. In ecclesiastical law. A 
spiritual punishment, consisting in with- 
drawing from a baptized person (whether be- 
longing to the elergy or the laity) a privilege 
which the church gives him, or in wholly ex- 
pelling him from the Christian communion. 
The principal varieties of censures are ad- 
monition, degradation, deprivation, excom- 
munication, penance, sequestration, suspen- 
sion, Phillim. Ece. Law, 1867. 

A custom observed in certain manors in 
Devon and Cornwall, where all persons 
above the age of sixteen years are cited to 
swear fealty to the lord, and to pay 11d. per 
poll, and Id, per annum. 


CENSUS. ‘The official counting or enu- 
meration of the people of a state or nation, 
with statistics of wealth, commerce, educa- 
tion, ete. 

In Roman law. A numbering or enroll 


ment of the people, with a valuation of thelr 
fortunes. 


= 


CENSUS 


in old European law. A tax, or tribute; 
atoll. Montesq. Esprit des Leis, liv. 30, c. 
14. 


CENSUS REGALIS. In English law. 
The annual revenue or income of the crown. 


least in value of those now minted. It is the 
one-hundredth part of a dollar. Its weight 
is 72 gr., and it is composed of copper and 
nickel in the ratio of 88 to 12. 


CENTENA. Abhundred. A district or 
givision containing originally a hundred free- 
men established among the Goths, Germans, 
Franks, and Lombards, for military and civil 
purposes, and answering to the Saxon “hun- 
dred.” Spelman; 1 Bl. Comm, 115, 

Also, in old records and pleadings, a hun- 
dred weight. 


CENTENARII Petty judges, under- 
sheriits of counties, that had rule of a hun- 
dred, (centerna,) and judged smaller matters 
among them. 1 Vent. 211. 


CENTENI. The prineipal inhabitants of 
acentena, or district composed of different 
villages, originally in number a hundred, but 
afterwards only called by that name. 


CENTESIMA. In Roman 
hundredth part. 

Usuria centesime. Twelve per cent. per 
annum; thatis, a hundredth part of the prin- 
cipal was due each month,—the month being 
the unit of time from which the Romans 
reckoned interest. 2 Bi, Comm. 462, note. 


law. The 


CENTIME. The name of a denomination 
of French money, being the one-hundredth 
part of a france. 


CENTRAL CRIMINAL COURT. An 
English court, having jurisdiction for the 
trial of crimes and mistiemeanors committed 
in London and certain adjoining parts of 
Kent, Essex, and Sussex, and of such other 
criminal cases as may be sent to it out of the 
queen’s bench, though arising beyond its 
proper jurisdiction. It wus constituted by 
the acts 4 & 5 Wm. LV. c. 86,and 19 & 20 
Vict. c. 16, and superseded the “Old Bailey.” 


CENTRAL OFFICE. 
fice of the supreme court of judicature in 
England is the office established in pursuance 
of the recommendation of the legal depart- 
nents commission in order to consolidate the 
offices of the masters and associates of the 
common-law divisious, the crown office of 
the queen’s bench division, the record and 


185 


CENT. A coin of the Uniled States, the | 


The central of- | held land of the thane on condition of paying 


CEPI 


writ clerk’s report, and enrollment offices of 
the chaneery division, and a few others. 
The central otlice is divided into the follow- 
ing departments, and the business and staff 
of the office are distributed accordingly: (1) 
Writ, appearance, and judgment; (2) sum- 
mons and order, for the common-law divis- 
ions only; {3) filing and record, including 
the old chancery report office; (4) taxing. for 
the common-law divisions only; (5) enroll- 


| ment; (6) judgments, for the registry of judg- 
| ments, executions, ete.; (7) bills of sale; (8) 


married women’s acknowledgments; (9) 
queen’s remembrancer; (10) crown office; 
and (11) associates. Sweet. 


CENTRALIZATION. This word 
is used to express the system of government 
prevailing in a country where the manage- 
ment of local matters is in the hands of func- 
tionaries appointed by the ministers of state, 
paid by the state, and in constant communi- 
cation and under the constant controj and in- 
spiration of the ministers of state, and where 
the funds of the state are largely applied to 
local purposes. Wharton. 


CHNTUMVIRI. In Roman law. The 
name of an important court consisting of a 
body of one hundred and five judges. It was 
made up by choosing three representatives 
trom each of the thirty-five Roman tribes. 
The judges sat as one body for the trial of 
certain imporiant or difficulé questions, 


| (called, “cause centumvirales,”) but ordi- 


narily they were separated into four distinct 


| tribuniuls. 


CENTURY. One hundred. A body of 
one hundred men, The Komans were divided 
into cenitries, as the English were divided 
into hundreds. 

Also a cycle of one hunilred years. 


CEORL. In AngloSaxonlaw. The free- 
men were divided into two classes, —thanes 
and ceorls. The thanes were the proprietors 
of the soil, which was entirely at their dis- 
posal. The eeorls were men personally free, 
but possessing no landed property. Guizot, 
Rep. Govt. 

A tenant at will of free condition, who 


rent or services. Cowell. 
A freeman of inferior rank oceupied in 
husbandry. Spelman. 


CEPI. Lat. I have taken. This word 


was of frequent use in the returns of sheriffs NM 


when they were made in Latin. 


CEPI CORPUS 


CEPI CORPUS. I have taken the body. 
The return of a sheriff who has arrested a 
parson upon a capias, 


CEPI CORPUS ET PARATUM HA- 
BEO, I have taken the bédy and have it 
ready. <A return made by the sheriff upon 
an attachment, captas, etc., when he has the 
person against whom the process was issued 
in custody. 


CEPIT. In eivil practice. He took. 
This was the characteristic word employed 
in (Latin) writs of trespass for goods taken, 
and in declarations in trespass and replevin. 

Repleyin in the cepit is a form of replevin 
which is brought for carrying away goods 
merely. Wells, Repl. § 53. 

In criminal practice. This was a tech- 
nical word necessary in an indictment for 
larceny. The charge must be that the de- 
fendant took the thing stolen with a felonious 
design. Bac. Abr. “Indictment,” G, 1. 


CEPIT ET ABDUXIT. He tock and 
led away. ‘The emphatic words in writs in 
trespass or indictments for larceny, where the 
thing taken was a living chattel, ¢. e., an an- 
imal, 


CEPIT ET ASPORTAVIT. He took 
and carried away. Applicable in a declara- 
tion in trespass or an indictment for larceny 
where the defendant has carried away goods 
without right. 4 Bl. Comm. 231. 


CEPIT IN ALIO LOCO. In pleading: 
A plea in replevin, by which the defendant 
alleges that he took the thing replevied in 
another place than that mentioned in the dec- 
laration. 1 Chit. Pl. 490. 


CEPPAGIUM. Inold Englishlaw. The 
stumps or reots of trees which remain in 
the ground after the trees are felled. Fleta, 
lib. 2, e. 41, § 24. 


CHRA, or CHRE. In old English law. 
Wax; a seal. 


CERAGRUM. In old English law. A 
payment to provide candles in the church. 
Blount. 


CEREVISIA. 
or beer. 


CERT MONEY. In old English law. 
Head money or common fine. Money paid 
yearly by the residents of severul manors to 
the lords thereof, for the certain keeping of 
the leet, (pro certo letz;) and sometimes to 
the hundred. Blount; 6 Coke, 78. 


In old English law. Ale 


186 


CERTIFICANDO 


Certa debet esse intentio, et narratio, 
et certum fundamentum, et certa rea 
quere deducitur in judicium. The design 
and narration ought to be jcertain, and the 
foundation certain, and the matter certain, 
which is brought into court to be tried. Co. 
Litt. 303¢. 

CERTA RES. In old English law. A 
certain thing, Fleta, lib. 2, ¢. 60, $§ 24, 25. 


CERTAIN SERVICES. In feudal and 
old English law. Such services as were 
stinted (limited or defined) in quantity, and 
couid nof be exeseded on any pretense; as to 
pay a stated annual rent, or to plow sucha 
field for three days. 2 Bl. Comm. 61. 


CERTAINTY. In pleading. Distinct. 
ness; clearness of statement; particularity, 
Such precision and explicitness in the state 
ment of alleged facts that the pleader’s aver- 
ments and contention may be readily under- 
stood by the pleader on the other aide, as well 
as by the court and jury. 

This word is technically used in pleading 
in two different senses, signifying either dis- 
tinctness, or particularity, as opposed to un- 
due generality, 

Certainty is said to be of three sorts: (1) 
Certainty to a common iniené is such as is 
attained by using words in their ordinary 
meaning, but is not exclusive of another 
meaning which might be made out by argu- 
ment or inference. (2) Certainty to @ cer- 
tain intent in general is that which allows 
of no misunderstanding if a fair and reason- 
able construction is put upon the language 
employed without bringing in facts which 
are possible, but not apparent. (8) Certainty 
to a certain intent in particular is the high- 
est degree of technical accuracy and precia- 
ion. Co. Litt. 303; 2 H. BL. 5380; 9 Johns. 
317. 


In contracts, The quality of being ape- 
cific, accurate, and distinct. 

A thing is certain when its essence, quality, and 
quantity are described, distinctly set forth, ote, 
Dig. 12, 1,6. It is uncertain when the description 
is not that of an individual object, but designates 
only the kind, Civil Code La. art. 3522, no. 8; 5 
Coke, 121. 


CERTIFICANDO DEH RECOGNI- 
TIONE STAPULA, In Englishlaw. A 
writ commanding the mayor of the staple to 
certify to the lord chancellor a statute-staple 
taken before him where the party himself de- 
tains it, and refuses to bring in the same. 
There is a like writ to certify a statute-mer- 
chant, and in divers other cases. Reg. Orig. 
148, 151, 152. 


CERTIFICATE 


CERTIFICATE. A written assurance, 
or official representation, that some act has 
or has not been done, or some event occurred, 
or some legal formality been complied with. 
Particularly, such written assurance made or 


issuing from some court, and designed as a, 


notice of things done therein, oras a warrant 
or authority, to some other court, judge, or 
officer, 

A document in usein the English custom- 
house. No goods can be exported by ceriifi- 
eate, except foreign goods formerly imported, 
on which the whole or a part of the customs 
paid on importation is to be drawn back. 
Wharton, 


CERTIFICATE FOR COSTS. In En- 
giish practice. <A certificate or memorandum 
drawn up and signed by the judge belore 
whom a case was tried, setting out certain 
facts the existence of which must be thus 


187 


proved before the party is entitled, under the — 


statutes, to recover costs. 


CERTIFICATE INTO CHANCERY. 
In English practice. This is a document 
containing the opinion of the common-law 
judges on a question of law submitted to them 
for their decision by the clancery court. 


CERTIFICATE OF DEPOSIT. In 
the practice of bankers, This is a writing 
acknowledging that the person named has 
deposited in the bank a specified sum of 
money, and that tle same is held subject to 
be drawn out on his own check or order, or 
that of some other person named in the in- 
strument a8 payee. 


CERTIFICATE OF HOLDER OF 
ATTACHED PROPERTY. A certificate 
required by statute, in some states, to be 


CERTIORARI 


CERTIFICATE, TRIAL BY. This is 
a mode of trial new little in use; it is resert- 
ed to in cases where the fact in issue fies out 
of the cognizance of the court, and the judg- 
es, in order to determine the question, are 
obliged to rely upon the solemn averment or 
information of persons in such a station ag 
affords them the clearest and most compe- 
tent knowledge of the truth. Brown, 


CERTIFICATION. In Scotch practice. 
This is the assurances given to a party of tha 
course to he followed in case he does not ap- 
pear or obey the order of the court, 


CERTIFICATION OF ASSISH. In 
English practice. A writ anciently granted 
for the re-examining or retrial of a matter 
passed by assise before justices, now entirely 
superseded by the remedy afforded by means 
of a new trial. 


CERTIFICATS DE COUTUME. In 
French law. Certificates given by a foreign 


‘ lawyer, establishing the law of the country 


given by a third person who is found in pos- | 


session of property subject to an attachment 
in the sherifi’s hands, setting forth the 
amount and character of such properly and 
the nature-of the defendant’s interest in it. 
Code Civil Proc. N. ¥, § 650. 


CHRTIFICATE OF REGISTRY. In 


maritime law. <A certificate of the registra- | 


tion of a vessel according tothe registry acts, 
for the purpose of giving her a national char- 
acter. dO Steph. Comm, 274; 6 Kent, Comm. 
139-150. 


CERTIFICATH OF STOCK. A cer- 
tificate of a corporation or joint-stock com- 
pany that the person named is the owner of a 
designated number of shares of its stock; 
given when the subscription is fully paid and 
the “scrip-certificate” tuken up. 


to which he belongs upon one or more fixed 
points. These certificates can be produced 
before the French courts, and are received ag 
evidence in suits upon questions of foreign 
law. Arg. Ir. Mere. Law, 54d. 


CERTIFIED CHECK. In the practice 
of bankers, ‘This is a depositor’s check rec- 
ognized and accepted by the proper olticer of 
the bank as a valid appropriation of the 
amount specified to the payee named, and as 
drawn against funds of such depositor held 
by the bank. The usual method of certifiea- 
tion is for the cashier or teller to write his 
name across the face of the check, 


CERTIFIED COPY. A copy of adocu- 
ment, signed and certified as a true copy by 
the officer to whose custody the original is 
intrusted, 


CERTIORARI, Lat. (To be informed 
of, to be made certain in regard to.) The 
name of a writ issued by a superior court di- 
recting an inferior court to send up to the 
former some pending proceeding, or all the 
record and proceedings in a causa kefore 
verdict, with ils certificate to the correctness 
and complctaness of the record, for review 


| ortrial; orit may serve to bring up the record 


of a case already terminated below, if the in- 
ferior court is one not of record, or in cases 
where the procedure is not according to the 
course of the common law. 

Originally, and in English practice, a certlorari 


is an original writ, issuing out of the court of 
chancery or the king’s bench, and directed in the 


CERTIORARI 


king’s name to the judges or officers of inferior 
courts, commanding them to certify or to return the 
records or proceedings in a cause depending before 
them, for the purpose of 4 judicial review of their 
action. Jacob. : 

In Massachusetts it is defined by statute as 
a writ issued by the supreme judicial court to 
any inferior tribunal, commanding it to cer- 
tify and return to the supreme judicial court 
its records in a particular case, in order that 
any errors or irregularities which appear in 
the proceedings may be corrected. Pub. St. 
Mass. 1882, p. 1285. 


CERTIORARI, BILL OP. In English 
chancery practice. An original bill praying 
reliof. It was filed for the purpose of re- 
moving a suit pending in some inferior court 
of equity into the court of chancery, on ac- 
count of some alleged incompetency or in- 
convenience. 


Certum est quod certo reddi potest. 
That is certain which can be reduced to a 
certainty. 3 Rep. Ch. 142. 


Certum est quod certum reddi potest. 
That is certain which can be rendered cer- 
tain. 9 Coke, 47; Broom, Max. 623. 


CERURA. 
ure, 


CERVISARIT. InSaxonlaw. Tenants 
who were bound to supply drink for their 
lord’s table, Cowell. 


CERVISIA. Ale, 
spelled “cerevisia.” 


A mound, fence, or inclos- 


or beer. Sometimes 


CERVISIARIUS. In old records. An 
ale-house keeper. A beer or ale brewer. 
Blo-nt. 

CERVUS. Lat. A stag or deer. 

CESIONARIO. In Spanish law. An 
assignee. White, New Recop. b. 3, tit. 10, 
c.1,§ 3. 

CESS, o. Inold Englishlaw. To cease, 


stop, determine, fail. 


CESS, n. An assessmentortax. In Ire- 
land, it was anciently applied to an exaction 
of victuals, at a certain rate, for soldiers in 
garrison. 


Cess& regnare, si non vis judicara. 
Cease to reign, if you wish not to adjudicate. 
Hob. 155. 


Cessante causa, cessat effectus. 
cause ceasing, the effect ceases. 
Max. 160. 


The 
Broom, 


188 


ee ee — 
— eee 


CESSER, PROVISO FOR 


Cessante ratione legis, cessat et ipsa 
lex. Thereason of the law ceasing, the law 
itself ceases also. Co. Litt. 706; 2 BL 
Comm. 390, 391; Broom, Max. 159. 


Cessante statu primitivo, cessat deriv- 
ativus. When the primitive or original es- 
tate determines, the derivative estate deter- 
mines also, 8 Coke, 34; Broom, Max. 495. 


CESSARE. L. Lat. 
stay. 


To cease, stop, or 


CHSSAVIT PER BIENNIUM. In 
practice. An obsolete writ, which could 
formerly have been sued out when the de- 
fendant had for two years ceased or neglect- 
ed to perform such service or to pay such 
rent as he was bound to do by his tenure, 
and had not upon his lands sufficient goods 
or chattels to be distrained. Fitzh. Nat. 
Brey. 208. Itaisolay wherea religious house 
held lands on condition of performing cer- 
tain spiritual services which it failed to do. 
3 Ll. Comm. 282, 


CHESSE. (1) An assessment or tax; (2) a 
tenant of land was said to cesse when he neg- 
lected or ceased to perform the services due 
to the lord. Co. Litt. 8732, 3808. 


CESSER. Neglect; a ceasing from, or 
omission todo, a thing. 3 Bl. Comm. 282. 

The determination of an estate. 1 Coke, 
84; 4 Kent, Comm. 33, 90, 105, 295. 

‘The “cesser” of a term, annuity, or the 
like, takes place when it determines or comes 
to an end. The expression is chiefly used 
(in England) with reference to long terms of 
a thousand years or some similar period, 
created by a settlement for the purpose of 
securing the income, portions, etc., given to 
the objects of the settlement. When the 
trusts of a term of this kind are satisfied, it 
is desirable that the term should be put an 
end to, and with this object it was formerly 
usual to provide in the setiiement itself that, 
as soon as the trusts of the term had been 
satistied, it should cease and determine, 
This was culled a “proviso for cesser.” 
Sweet. 


CESSEHR, PROVISO FOR. Where 
terms for years are raised by settlement, it 
is usual to introduce a proviso that they shall 
cease when the trusts end. ‘This proviso 
generally expresses three events: (1) The 
trusts never arising; (2) their becoming un- 
necessary or incapable of taking effect; (3) 
the performance of them. Sugd. Yend. 
(14th Ed.) 621-623. 


CESSET EXECUTIO 


CESSET EXECUTIO, (Let execution 
stay.} In practice. A stay of execution; 
or an order for such stay; the entry of such 
stay on record. 2 Tidd, Pr. 1104. 


CESSET PROCESSUS. (Let process 
stay.) <A stay of proceedings entered on the 
record. 


CESSIO. Lat. <A cession; a giving up, 
or relinguishment; a surrender; an assign- 
ment. 


CESSIO BONORUM. In Roman law. 
Cession of goods. A surrender, relinquish- 
ment, or assignment of all his property and 
effects made by an insolvent debtor for the 
benefitofhis creditors. The effect of this vol- 
untary action on the debtor’s part was to se- 
eure him against imprisonment or any bodily 
punishment, and from infamy, and to cancel 
his debts to the extent of the property ceded. 
it much resembled our voluntary bankruptcy 
or assignment for creditors. ‘The term is 
commonly employed in modern continental 
jurisprudence to designate a bankrupt’s as- 
signment of property to be distributed among 
his creditors, and is used in the same sense 
by some English and American writers, but 
here rather as a convenient than as a strictly 
technical term. Sea 2 Gi. Comm. 473; 1 
Kent, Comm. 247, 422; Irsk. Inst. 4, 3, 26. 


CESSIO IN JURE. InRomanlaw. A 
fictitious suit, in which the person who wss 
to acquire the thing claimed (vindicaliat) the 
thing as his own, the person who was to 
transfer it acknowledged the justice of the 
claim, and the magistrate pronounced it to 
be the property (addiecbat) of the claimant. 
Sandars’ Just. Inst. (4th Ed.) 89, 122. 


CESSION. The act of cading; a yield- 
ing or giving up; surrender; relinquishment 
of property or rights. 

In the civil law. Anassignment. The 
act by which a party transfers property to 
another. The surrender or assignment of 
property for the benefit of one’s creditors. 

In ecclesiastical law. <A giving up or 
vacating a benefice, by accepting another 
without a proper dispensation. 1 Bi. Comm, 
392; Latch, 234. 

In public law. The assignmeni, trans- 
fer, or yielding up of territory by one state 
or government to another. 


CESSION DES BIENS. In French 
law. The surrender which a debtor makes 


of all his goods to his ereditors, when he 
tinds himself in insolyent circumstances, It 


189 


CESTUI QUE VIE 


is of two kinds, either voluntary or compul- 
sory, (Judiciatre,) corresponding very nearly 
to Hquidation by arrangementand bankrupt- 
ey in English and American law. 


CESSION OF GOODS. The surrender 
of property; the relinquishment that a debt- 
or makes of all his property to his creditors, 
when he finds himself unable to pay his 
debts. Civil Code La. art. 2170. 


CESSIONARY. 
signee, Bell. 


CESSIONARY BANKRUPT. One who 
gives up hig estate to be divided among hia 
creditors, 


CESSMENT. 


CESSOR. Ons who ceases or neglects so 
long to performa duty that he thereby ineurs 
the danyer of the law. O. N. B. 1386. 


CESSURE. L Fr. Areceiver; a bailiff. 
Kelham. 


CEST ASCAVOIR. L. Fr. Thatis to 
say, or to-wit. Generally written as one 
word, cestascavoir, cestascuvotre. 


In Scotch law. Anas- 


An assessment, or tax. 


Crest le crime qui fait la honte, ef non 
pas Vechafaud. It is the offense which 
causes the shame, and not the scaffold. 


CESTUI, CHSTUY. He, Used fre 
quently in composition in law French 
phrases. 


CESTUI QUE TRUST. He who hasa 
right to a beneficial interest in and out of an 
estate the legal title to which is vested in an- 
other, 2 Washb. Real Prop. 163. 

The person who possesses the equitable 
right to property and receives the rents, is- 
sues, and profits thereof, the legal estate of 
which is vested in a trustee. 

It has been proposed to substitute far this on- 
couth term the Engiish word “beneficiary,” and 
the latter, though still far from universally adopt- 
ed, has come to be quite frequentiy used. It is 
equal in precision to the antiquated and unwieldy 
Norman phrase, and far better adapted to the gen- 
iua of our language. 


CESTULI QUE USE. He for whose use 
and benefit lands or tenements are held by 
another, The cestut gue use has tac right to 
receive the profits and benefits of the estate, 
but the legal title and possession (aa well as 
the duty of defending the same) reside in tha 
other. 


CESTUE QUE VIE. He whose life {s 
the wensure of the duration of an estate. 
1 Washb. Real Prop. 88. 


G2 


CESTUI QUE VIE 


The person for whose life any lands, tene- 
ments, or hereditaments are held. 


Cestuy que doit inheriter al pére doit 
inheriter al fils. He who wuuld have been 
heir to the father of the deceased shall also 
be heir of the son, Fitzh. Abr. “Descent,” 
2; 2 BL Comm. 289, 250. 


CF. An abbreviated form of the Latin 
word conferre, meaning “compare.” Directs 
the reader's attention to another part of the 
work, to another volume, case, ete., where 
contrasted, analogous, or explanalory views 
or Statements may be found. 


CH. This abbreviation most commonly 
stands for “chapter,” or “chancellor,” but it 
may algo mean “chancery,” or “chief.” 


CHACE, L. Fr. 
ground, 


CHACHA. Inold English law. A sta- 
tion of game, more extended than a park, and 
less than a forest; also the liberty of chasing 
or hunting within a certain district; also the 
way through which cattle are driven to past- 
ure, otherwise called a “drove-way.” Blount. 


A chase or hunting 


Chacea est ad communem iegem. A 
chase is by common law. Reg. Brev. 806. 


CHACEABLE. lL, Fr. 
chased or huntect. 


CHACER. To drive, compel, or oblige; 
also to chase or hunt. 


CHACURUS. A horse for the chase, or 
a hound, dog, or courser. 


CHAFHWAX, An officer in the En- 
glish chancery whose duty was to fit the wax 
to v3al the writs, commissions, and other in- 
struments thence issuing. The office was 
abolished by St. 15 & 16 Vict. c. 87, § 23. 


CHAFFERS. An ancient term for goods, 
wares, and merchandise. 


CHAFFERY. Traffic; the practice of 
buying and selling. 


That may be 


CHAIN. <A measure used by engineers 
and surveyors, being twenty-two yards in 
length, 


CHAIRMAN. A name given to the pre- 
siding officer of an assembly, public meeting, 
convention, deliberative or legislative body, 
board of directors, committee, ete. 


CHAIRMAN OF COMMITTEES OF 
THE WHOLE HOUSE. In English par- 
liamentary practice, In the commons, this 
officer, always a member, is elected by the 


190 


CHALLENGE PEREMPTORY 


house on the assembling of every new pariia- 
ment. When the house is in committes 
ou bills introduced by the government, or in 
committee of ways and means, or supply, or 
in committee to consider preliminary resolu- 
tions, ib is his duty to preside, 


CHALDRON, CHALDHERN, or CHAL- 
DER. Twelve sacks of coals, each holding 
three bushels, weighing about a ton anda 
half. In Wales they reckon 12 barrels or 
pitchers a ton or chaldron, and 29 ewt, of 120 
lbs. to the ton. Wharton. 


CHALKING, or CAULKING. The 
process or method of stopping the seams in a 
ship or a vessel. 


CHALLENGE. 1. To object or except 
to; to prefer objections to a person, right, or 
instrnment; to formally call into question the 
capability of a person for a particular func- 
tion, or the existence of a right cluimed, or 
the suflicieney or validity of an instrument, 

2. As a noun, the word signifies the objec- 
tion or exception so advanced. 

3. An exception taken against legal docu- 
ments, a8 a devlaration, count, or writ. But 
this use of the word is now obsolescent. 

4. An exception or objection preferred 
against a person who presents himself at the 
polls as a vuter, in order that his right to cast 
a ballot may be inquired into, 

5. An objection or exception to the per- 
sonal qualification of a judge or magistrate 
about to preside at the trial of a cause; ason 
account of personal interest, his having been 
of counsel, bias, ete, 

6. An exception or objection taken to the 
jurors summoned and returned for the trial 
of a cause, either individually, (to the polls,) 
or collectively, (to the array.) 

AT coNMON Law. The causes for principal chal- 
lenges fallunder four heads: (1) Propter honoris 
respectum. On account of respect for the party’s 
social rank. (2) Propter defectum. On account 
of some legal disqualification, such as inianey or 
alienage. (3) Propier ajffectum. On aceount of 
partiality; that is, either expressed or implied bias 
or prejudice. (4) Propter delictum. On account 
of crime; that is, disqualification arising from tha 
conviction of an infamous crime. 


CHALLENGE FOR CAUSE. A chal- 
lenge to a juror for which some cause or rea- 
son isalleged. Termes dela Ley; 4 Bl. Comm. 
353. Thus distinguished from a peremptory 
challenge. 


CHALLENGE PEREMPTORY. A 
privilege allowed to a prisoner in criminal 
eases, Of challenging peremptorily a certain 
nuinber of jurors, without assigning any 


cause. Termes de la Ley; 4 Bl. Comm, 353; 
Co. Litt. 156. 


CHALLENGE, PRINCIPAL. Such as 
ig made for acause whicli when substantiated 
is of itself sufiicient evidence of bias in favor 
of oragainst the party challenging. Cao. Litt. 
1566. See 8 Bl. Comm. 863; 4 Bl. Comm. 
358, 


CHALLENGE TO FIGHT. A sum- 
mons or invitation, given by one person to 
another, to engage in a personal combat; a 
request to fightaduel, <A criminal) offense. 
See Steph. Crim. Dig. 40; 8 East, 581; 6 
Blackf. 20. 


CHALLENGE TO THE ARRAY. An 
exception fo the whole panel in which the 
jury are arrayed, or seb in order by the sher- 
iff in his relurn, upon account of partiality, 
or sume default in the sheriff, coroner, or 
other officer who arrayed the panel or made 
the return. 3 Bi. Comm. 359; Co. Litt. 1555, 


CHALLENGE TO THE FAVOR. Is 
where the party has no principal challenge, 
but objects only some probable circumstances 
of suspicion, ag acquaintance, and the like, 
the validity of which must be leit to the de- 
termination of triors, Whose office it is to de- 
cide whether the jurer be favorable or un- 
favorable, 3 Bl. Comm. 35; 4 Bl. Comm. 
dou, 


CHALLENGE TO THE POLL. A 
challenge made separately to an individual 
juror; a8 distinguished Irom a challenge to 
the array. 


CHAMBER. A room or apartment in a 
house. A private repository of money; a 
treasury. Sometimes used to designate a 
court, a commission, or an association of 
persons habitually mveting together in an 
apartment, e. g.,the “star chamber,” “cham- 
ler of deputies,” “chamber of commerce.” 


CHAMBER OF ACCOUNTS. In 
French law. A sovereign court, of great an- 
tiquity, in France, which took cognizance of 
and registered the accounis of the kinw’s rev- 
enue; nearly the same as the English court of 
exchequer. Ene, Brit, 


CHAMBER OF COMMERCE. An 
association (which may or may not be incor- 
porated) comprising the principal merchants, 
manufacturers, and tracers of a city, designed 
for convenience in buying, selling, and ex- 
changing goods, and to foster the commercial 
anu industrial interests of the place. 


CHALLENGE, PRINCIPAL 191 CHAMP DE MARS 


CHAMBER, WIDOW’S. A portion of 
the effects of a deceased person, reserved for 
the use of his widow, and consisting of her 
apparel, and the furniture of ber ed-chamber, 
is called in London the “widow’s chamber.” 
2 BL Comm. 518. 


CHAMBERDEKINS, or CHAMBER 
DEHACONS. In old English law. Certain 
poor Irish scholars, clothed in mean habit, 
and living under no rule; also beggars ban- 
ished from England. (1 Hen. V. ce, 7, 8.) 
Wharton. 


CHAMBERLAIN. Keeper of the cham- 
ber. Originally the chamberlain was the D 
keeper of the treasure chamber (camera) of 
the prince or state; otherwise called “treas- 
urer,” Cowell. 

The name of several high officers of state 
in England, as the lord great chamberlain of 
England, lord chamberlain of the houseliold, 
chimberlain of the exchequer. Cowell; 
Blount. 

The word is also used in some American 
cities as the title of an officer corresponding 
to “treasurer.” 


COAMBERLARIA, Chamberlainship; 
the office of a chainberlain. Cowell. 


CHAMBERS. In practice. The pri- G 
vate room or olfice of a judge; any place in 
which a judge heara motions, signs papers, 
or does other bustness pertaining to his office, 
when he is not holding a session of court. H 
Business so transacted is said to Le done “ip 
chambers.” The term is also applied, in 
England, to the private ollive of a barrister. 

In international law. P[ortions of the 
sea cut off by lines drawn from one promon- { 
tory to another, or included within lines ex- 
tending from the point of one cape to the 
next, siluate on the sea-coast of the same na- 
tion, and which are claimed by that nation as J 
asylums for merchant vesseis, and exempt 
from the operations of belligerents. 


CHAMBIUM. In old English flaw. 
Change, or exchange. Bract. fols. 117, 118. 


CHAMBRE DEPEINTE. A name an- 
elentiy given to St. Edward’s chamber, called 
the “Painted Chamber,” destroyed by fre 
with the houses of parliament. 


CHAMP DE MAT. (Lat. Campus Matt.) L 
The field or assembly of May. The national 
assembly of the Frauks, held in the month of 
May. 

CHAMP DE MARS. (Lat. Campus M 
Jfartii.) The field or assembly of March, 


——— 


CHAMPART 


The national assembly of the Franks, held in 
the month of March, in the open air. 


CHAMPART. In French law. The 
grant of a piece of land by the owner to an- 
other, on condition that the latter would de- 
liver to him a portion of thecrops. 18 Toul- 
lier, n, 182. vi 


CHAMPERT. In old English law. A 
share or division of land; champerty. 

In old Scotch law. A gift or bribe, 
taken by any great man or judge from any 
person, for delay of just actions, or further- 
ing of wrongous actions, whether it be lands 
or any goods movable. Skene. 


CHAMPERTOR. In criminallaw. One 
who makes pleas or snits, or causes them to 
be moved, either directly or indirectly, and 
sues them at his proper costs, upon condition 
of having a part of the gain. One guilty of 
chumperty. st. 33 Edw, I. c. 2. 


CHAMPERTOUS. Of the nature of 
champerty; affected with champerty. 


CHAMPERTY. A bargain made by a 
stranger with one of the parties to a suit, by 
which such third person undertakes to carry 
on the litigation at his own cost and risk, in 


consideration of receiving, if he wins the | 


suit, a part of the land or other subject 
sought to be recovered by the action. 

‘The purchase of an interest in a thing in 
dispute, with the object of maintaining and 
taking part in the litigation. 7 Bing. 378. 

The act of assisting the plaintiff or defendant in 
a legal proceeding in which the person giving the 
assistance has no valuable interest, on an agree- 
ment that, if the proceeding is successful, the pro- 
ceeds shall be divided between the plaintiff or de- 
fendant, as the case may be, and the assisting per- 
son. Sweet. 

Champerty is the carrying on a suit in the name 
of another, but at one’s own expense, with the 
view of receiving as compensation a certain share 
of the ayailsof the suit. 4 Duer, 275. 

The distinction between champerty and 
maintenance lies in the interest which the in- 
terfering party is to have in the issue of the 
suit. In the former cage, he is to receive a 
share or portion of what inay be recovered; 
in the latter case, he is in no way benetited 
by the suecess of the party aided, but simply 
intermeddles officiously. Thus every cham- 
perty ineludes maintenance, but not every 
maintenance is champerly. See 2 Inst. 208. 


CHAMPION. A person who fights a 
combat in his own cause, or in place of an- 
other. The person who, in the trial by bat- 


192 


CHANCELLOR 


tel, fought either for the tenant or demand- 
ant. 3 BI. Comm. 339, 


CHAMPION OF THE KING OR 
QUEEN. An ancient officer, whose duty 
it was to ride armed cap-d-pié, into West- 
minster Hall at the coronation, while the 
king was at dinner, and, by the proclama- 
tion of a herald, make a challenge “that, if 
any man shall deny the king’s title to the 
crown, he is there ready to defend it in sin- 
gle combat.” The king drank to him, and 
sent him a gilt cup covered, full of wine, 
which the champion drank, retaining the 
cup for his fee. This ceremony, long dis- 
continued, was revived at the coronation of 
George IV., but not afterwards. Wharton, 


CHANCE. In criminal law. An acci- 
dent; an unexpected, unforeseen, or unin- 
teded consequence of an act; a fortuitous 
event. The opposite of intention, design, or 
contrivance. 

There is a wide difference between chance 
and accident. The one is the intervention 
of some unlooked-for circumstance to pre 
vent an expected result; the other is the un- 
calculated effect of mereluck. Thashot dis- 
charged at random strikes its object by chance; 
that which is turned aside from its well-di- 
rected aim by some unforeseen circumstance 
misses its mark by accident. Pure chauce 
consists inthe entire absence of all the means 
of calculating results; accident, in the un- 
usual prevention of an effect naturally re- 
sulling from the means employed. Morris, 
(Jowa,) 173. 


CHANCE-MEDLEY. In criminal law, 
A sudden affray. This word is sometimes 
applied toany kind of homicide by misad- 
venture, but in strictness it is applicable ta 
such killing only as happens in defending 
one’s self. 4 LI. Comm. 184. 


CHANCEL. In ecclesiastical law. The 
part of a church in which the communion 
table stands; it belongs to the rector or the 
impropriator. 2 Broom & H. Comm. 420. 


CHANCELLOR. In American law, 
this is the name given in some states to the 
judge (or the presiding judge) of a court of 
chancery. In England, besides being the 
designation of the chief judge of the court 
of chancery, the term is used as the title of 
several judicial officers attached to bishops 


| or other high dignitaries and to the univer- 


sities. (See the following titles.) In Scotch 
practice, it denotes the foreman of an assise 
or jury. 


CHANCELLOR OF A CATHEDRAL. 
In English ecclesiastical law. One of the 
guatuor persone, or four chief dignitaries of 
the cathedrals of the old foundation. The 
duties assigned to the office by the statutes 
of the different chapters vary, but they are 


ehiefly of an educational character, with a 


special reference to the cultivation of theol- 
ouy. 

CHANCELLOR OF A DIOCESE. In 
ecclesiasticul law. Is the officer appointed 
to assist a bishop in matters of law, and to 
hold his consistory courts for him. 1 Bl. 
Comm. 382; 2 Steph. Comm. 672. 


CHANCELLOR OF A UNIVERSI- 
TY. In English law. The official head of a 
university. His principal prerogative is to 
hold a court with jurisdiction over the mem- 
bers of the university, in which court the 
vice-chancellor presides. The oflice is for the 
most part honorary. 


CHANCELLOR OF THE DUCHY 
OF LANCASTER. In Englishlaw. An 


officer before whom, or his deputy, the court | 
of the duchy chamber of Lancaster is held. | 


This is a special jurisdiction concerning all 
manner of equity relating to lands holden of 
the king in right of the duchy of Lancaster. 
Hob. 77; 8 Bl. Comm. 78. 


CHANCELLOR OF THE EXCHEQ- 
UER. In English law. <A high officer of 
the crown, who formerly sat in the exchequer 
court, and, together with the regular judges 
of the court, saw that things were conducted 
to the king’s benefit. Im moderntimes, how- 
ever, his duties are not of a judicial char- 
acter, but such as pertain to a minister of 
state charged with the management of the 
national revenue and expenditure. 


CHANCELLOR OF THE ORDER 
OF THE GARTER, and other military 
orders, in England, is an officer who seals 
the commissions and the mandates of the 
chapter and assembly of the knights, keeps 
the register of their proceedings, and delivers 
their acts under the seal of their order, 


CHANCELLOR, THE LORD HIGH. 
In England, this is the highest judicial func- 
tionary in the kingdom, and superior, in point 
of precedency, to every temporal lord. He 
is appointed by the delivery of the queen’s 
preat seal into hia custody. He may not be 
a Roman Catholic. Heisa cabinet minister, 
a privy counsellor, and prolocuter of the 
house of lords by prescription, (but not nec- 
essarily, though usually, a peer of the realin,) 

AM.DICT.LAW—13 


CHANCELLOR 193 


CHANTER 


and vacates his office with the ministry by 
which he was appointed. To him belongs 
the appointment of all justices of the peaca 
throughout the kingdom. Being, in the ear- 
lier periods of English history, usually an ee- 
clesiastic, (for none else were then capable of 
an office so conversant in writings,) and pre- 
siding over the royal chapel, he became keeper 
of the sovereign’s conscience, visitor, in right 
of the crown, of the hospitals and colleges of 
royal foundation, and patron of all thecrown 
livings under the value of twenty marks per 
annuum in the king’s books. He is the gen- 
eral guardian of all infants, idiots, and luna- 


tics, and has the general superintendence of all 
charitable uses, and all this, over and above 
the vast and extensive jurisdiction which he 
exercises in his judicial capacity in the su- 
preme court of judicature, of which he is the 
head. Wharton. 


CHANCELLOR’S COURTS IN THE 
TWO UNIVERSITIES. In English law. 
Courts of local jurisdiction in and for the two 
universities of Oxford and Cambridge in 
England. 


CHANCERY. LIquity; equitable juris- 
diction; a court of equity; the system of ju- 
risprudence administered in courts of equity. 
See CourT OF CHANCERY. 


CHANGE. 1. An aiteration; substitu- 
tion of one thing for another. This word does 
not connote either improvement or deteriora- 
tion as a result. In this respect it differs 
from emendment, which, in law, always im- 
ports a change for the better. P 

2. Exchange of money against money of a 
different denomination. Also small coin. 
Also an abbreviation of exchange. 


CHANGER. An officer formerly belong- 
ing to the king's mint, in England, whose 
business was chiefly to exchange coin for bull- 
ion brought in by merchants and others. 


CHANNEL. This term refers rather to 
the bed in which the main stream of a river 
flows than to the deep water of the stream as 
followed in navigation. 55 Iowa, 5538, 8 N. 
W. Rep. 443. 

The “main channel” ofa river is that bed of the 
river over which the principal volume of water 


| flows. Many great rivers discharge themselves 
into the sea through more than one channel. ‘They 
all, however, have a main channel, through which 
the principal volume of water passes. 81 Fed. 
| Rep. 757, 


CHANTER. The chief singer in the 
choir of a cathedral. Mentioned in 13 Eliz. 
| e. 10. 


Mi 


CHANTRY 


CHANTRY. A church or chapel en- 
dowed with lands for the maintenance of 
priests to say mass daily for the souls of the 
donors. Termes de la Ley; Cowell. 


CHAPEL. A place of worship; a lesser 
or inferior church, sometimes a part of or 
subordinate to another church. Webster. 


CHAPEL OF EASE. In English eccle- 
siastical law. A chapel founded in general 
at some period later than the parochial 
church itself, and designed for the accommo- 
dation of such of the parishioners as, in 
course of time, had begun to fix their resi- 
dence at some distance from its site; and so 
termed because built i aid of the original 
church. 8 Steph. Comm. 151. 


CHAPELRY, The precinct and limits 
of achapel. The same thing to a chapel as 
a parish is toa church. Cowell; Blount. 


CHAPERON. A hood or bonnet an- 
ciently worn by the Knights of the Garter, as 
part of the habit of that order; also a little 
escutcheon fixed in the forehead of horses 
drawing a hearse ata funeral. Wharton. 


CHAPITRE. A summary of matters to 
be inquired of or presented before justices in 
eyre, justices of ussise, or of the peace, in 
their sessions. Also articles delivered by 
the justice in his charge to the inquest. 
Brit. c. iii. 

CHAPLAIN. An ecclesiastic who per- 
forms divine service in a chapel; but it more 
commonly means one who attends upon a 
king, prince, or other person of quality, for 
the performance of clerie¢:] duties in a pri- 
vate chapel. 4 Coke, 90. 

A clergyman officially attached to a ship of 
war, to an army, (or regiment,) or to some 
public institution, for the purpose of per- 
forming divine service. Webster. 


CHAPMAN. An itinerant vendor ot 


small wares. A trader who trades from 
place to place. Say. 191, 192. 
CHAPTER. Im ecclesiastical law. A 


congregation of ecclesiastical persons in a 
cathedral church, consisting of canons, or 
prebendaries, whereof the dean is the head, 
all subordinate to the bishop, to whom they 
act us assistants in matters relating to the 
church, for the better ordering and disposing 
the things thereof, and the confirmation 
of such leases of the temporalty and offices 
relating to the bishopric, as the bishop shall 
Touke from time to time. And they are 
termed “caeptiudam,” as a kind of head, in- 


194 


CHARGE 


stituted not only to assist the bishop in man- 
ner aforesaid, but also anciently to rule and 
govern the diocese in the time of vacation, 
Burn, Dict. 


CHARACTER. The aggregate of the 
moral qualities which belong to and distin- 
guish an individual person; the general re- 
sult of the one’s distinguishing attributes. 

That moral predisposition or habit, or ag- 
gregate of ethical qualities, which is believed 
to aitach to a person, on the strength of the 
common opinion and report concerning him. 

The opinion generally entertained of a per- 
son derived from the common report of the 
people who are acquainted with him. dSerg. 
& RK. 386; 3 Mass. 192. 


Character and repuintion are not synonymous 
terms. Character is what a manor woman is mor- 
ally, while reputation is what he or she is reputed 
to be. Yet reputation is the estimate which the 
community hus of a person’s character; and it is 
the belief that moral character is wanting in an 
individual that renders him unworthy of belief; 
that is to say, that reputation is evidence of char- 
acter, and if the reputation is bad for truth, or rep- 
utation is bad in other respects aifecting the moral. 
character, then the jury may infer that the char- 
acter is badand the witness not reliable. General 
character has always been proved by proving gen- 
eral reputation. 6 Or. 218. 

The word “character” no doubt has an objective 
and subjective import, which are quite distinct. 
As to the object, character is its quality. As to 
man, it is the quality of his mind, and his affec- 
tions, his capacity and temperament. But as a 
subjective term, certainly in the minds of others, 
one’s character is the aggregate, or the abstract, 
of other men’s opinions ofone. And inthis sense, 
when a witness speaks of the character of another 
witness for truth, he draws not upon his memory 
alone, but his judgment also. Itis the conclusion 
of the mind of the witness, in summing up the 
amount of all the reports he has heard of the man, 
and declaring bis character for truth, as held ip 
the minds of his neighbors and acquaintances, and 
in this sense character, general character, and 
general report or reputation are the same, as held 
in the books. 26 Vt. 278. 


CHARGE, 0. To impose a burden, ob- 
ligation, or lien; to create a elaim against 
property; to claim, to demand; to accuse: to 
instruet a jury on matters of law. 


CHARGE, mn. In general. An incum- 
brance, lien, or burden; an obligation or duty; 
@ liability; an accusation, 

In contracts. An obligation, binding 
upon him who enters into il, which may be 
removed or taken away by a discharge. 
Termes de la Ley. 

An undertaking to keep the custody of an- 
other person’s goods. 

An obligation entered into by the owner of 
an estate, which binds the estate for its per- 


CHARGE 


formanee. 
& B. 223. 

In the law of wills. A responsibility or 
liability imposed by the testator upon a dev- 
isee personally, or upon the land devised. 

In equity pleading. An allegation in 
the bill of matters whieh disprove or avoid a 
defense which it is alleged the defendant is 
supposed to pretend or intend to set up. 
Story, Eq. Pl. § 31. 

In equity practice. A paper presented 
toa master in chancery by a party to a canse, 
being a writlen statement of the items with 
which ths opposite party should be debited or 
should account for, or of the claim of the par- 
tymakingit. Itismore comprehensive than 
a claim, which implies only the amount due 
to the person producing it, while a charge 
may embrace the whole liabilities of the ac- 
cointing party. Hoff. Mast. 36. 

In common-law practice. The finalad- 
dress made by a judge to the jury trying a case, 
before they make up their verdict, in which he 
suns up the case, and instructs the jury as to 
the rules of law which apply to its various 
issues, and which they must observe, in de- 
ciding upon their verdict, when they shall 
lave determined the controverted matters of 
fact. The term also applies tothe address of 
the court to & grand jury, in which the latter 
aré instructed aa ta their duties. 

In Scotch law. The command of the 
king’s letters to perform some act; as a 
charge Loenter heir. Aisoamessonger’s ex- 
ecution, requiring a person to obey the order 
of the king’s letters; as a charge on letters of 
lorning, or a charge against a superior. 
Bell. 


CHARGE AND DISCHARGE. Under 
the former system of equity practice, this 
phrase was used to characterize the usual 
method of taking an account before a master. 
After the plaintiff had presented his 
“charge,” a written statement of the items 
of account for which he asked credit, the de- 


Com. Dig. “Rent,” ¢. 6; 2 Ball 


fendant filed a counter-statement, called a | 


“discharge,” exhibiting any claims or de- 
mands he held against the plaintiff. These 
served to define the field of investigation, and 
constifuted the basia of the report. 


CHARGE DES AFFAIRES, or 
CHARGE D’AFFAIRES, The title of 
a diplomatic representative of inferior rank. 
He has not the title or dignity of a minister, 
though he may be charged with the functions 
und offices of the latter, either as a temporary 
suistituts for a minister or at a court to 


195 


CHARITY 


which his government does not aceredit 9 
minisLer. 


CHARGE-SHEBT. A paper kept at a 
police-station to receive each night the names 
of the persons brought and given into custody, 
the nature of the accusation, and the name 
of the aceuser in each case. Itis under the 
care of the inspector on duty. Wharton. 


CHARGE TO ENTER HEIR. In 
Scotch law. A writ commanding a person 
to enter heir to his predecessor within forty 
days, utherwise an action to be raised aguinst 
him as if he had entered. 


CHARGEABLE. This word, in its ar- 
dinary aceeptation, as applicable to the im- 
position of aduty or burden, signifies capable 
of being charged, subject to be churged, liable 
to be chargel, or proper to be charged. 46 
Vt. 625; 107 Mass. 419, 


CHARGHANT. Weighty; beavy; penal; 
expensive, Kelham. 


CHARGES. The expenses which have 
been incurred, or disbursements made, in 
connection with a contract, suit, or business 
transaction. Spoken of an action, it is said 
that the term includes more than what falls 
under the technical description of “costs.” 


CHARGING ORDER. The name be- 


| stowed, in English practice, upon an order al- 


lowed by St. 1 & 2 Vict. c. 110, § 14, and 3 &4 
Vict. c. 82. to be granted to a judgment ered- 
itor, that the property of a Judgment debtor in 
government stock, or in the stock of any 
public coinpany in England, corporate or obth- 
erwise, shall (whether standing in his own 
name or in the name of any person in trust 


' for hitn) stand charged with the payment of 


the ameunt for which judgment shall have 
been recovered, with interest. 3 Steph. 
Comm. 587, 588. 


CHARITABLE USES, CHARITIES. 
Gifts to general public uses, which may ex- 
tend tothe rich, as well as the poor. Amb. 
651; 2 Sneed, 305. 

Gifis to such purposes as are enumerated 
in the act 43 Eliz. c. 4, or which, by analogy, 
are deemed within its spirit or intendment. 
Boyle, Char. 17. 


CHARITY. Subjeciively, the sentiment 
or motive of benevolence and philanthropy; 
the disposition to relieve the distressed, Ob 
jectively, alms-giving; acts of benevolence; 
relief, assistance, or services accorded to the 
needy without return. Also gifts for the 


CHARITY 


promotion of philanthropicand humanitarian 
purposes. ‘ 

The meaning of the word “charity,” in Its legal 
sense, is different from the signification which it 
ordinarily bears. In its legal sense, it includes not 
only gifts for the benefit of the poor, but endow- 
ments for the advancement of learning, or institu- 
tions for the encouragement of science and art, 
and, it is said, for any other useful and public pur- 
pose. 25 Ohio St. 243. 

Charity, in its widest sense, denotes all the good 
affections men ought to bear towards each other; 
inarestricted and common sense, relief of the poor. 
9 Ves. 399. 

Charity, as used in the Massachusetts Sunday 
law, includes whatever proceeds from a sense of 
moral duty or a feeling of kindness and humanity, 
and is intended wholly for the purpose of the relief 
or comfort of another, and not for one’s own bene- 
fit or pleasure. 118 Mass, 195, 197. 


CHARRE OF LEAD. A quantity con- 
sisting of 36 pigs of lead, each pig weighing 
about 70 pounds. 


CHART. The word “chart,” as used in 
the copyright law, does not include sheets of 
paper exhibiting tabulated or methodically 
arranged information. 24 Fed. Rep. 632. 


CHARTA. In old English law. A 
charter or deed; an instrument written and 
sealed; the formal evidence of conveyances 
and contracts. Also any signal or token by 
which an estate was held. The term came 
te be applied, by way of eminence, to such 
documents as procerded from the sovereign, 
granting liberties or privileges, and either 
where the recipient of the grant was the 
whole nation, as in thecase of Magna Charta, 
or a public body, or private individual, in 
which ease it corresponded to the modern 
word “charter.” 


In the civillaw. Paper, suitable for the 
inscription of documents or books; hence, 
any instrument or writing. See Dig. 32, 52, 
6; Noy. 44, 2. 


CHARTA COMMUNIS. Inold English 
law. A common or mutual charter or deed; 
one containing mutual covenants, or involv- 
ing mutuality of obligation; one to which 
both parties might have occasion to refer, to 
establish their respectiverights, Bract. fola. 
Bob, 34. 


CHARTA CYROGRAPHATA. In old 
Englishlaw. A chirographed charter; achar- 
ter executed in two parts, and eut through 
the middle, (scinditur per medium,) where 
the word “cyrogruphum,” or “ehtrograph- 
wm,” was written inlargeletters, Bract. fol. 
$4: Fleta, lib. 3, ¢. 14, § 3. 


196 


CHARTER 


CHARTA DE FORESTA, A colleetion 
of the laws of the forest, madein the 9th Hen. 
IiI., and said to have been originally a part 
of Magna Charia. 


Charta de non ente non valet. Ca. 
Litt, 36. A charter concerning a thing not 
in existence avails not. 


CHARTA DE UNA PARTE. A deed- 
poll. 


Charta non est nisi vestimentum do- 
nationis. <A deed is nothing else than the 
vestment of a gift. Co. Litt. 36. 


CHARTA PARTITA. (Literally, a 
deed divided.) A charter-party. 3 Kent, 
Comm. 201. 


CHART LIBERTATUM. These are 
Magna Charta and Charta de Foresta. 


Chartarum super fidem, mortuis tes- 
tibus, ad patriam de necessitudine re- 
currendum est. Co. Litt. 36. The wit- 
nesses being dead, the truth of charters must 
of necessity be referred to the country, z. e., 
a jury. 


CHARTE. A chart, or plan, which mar- 
iners use at sea. 


CHARTE-PARTIE. Fr. 
marine law, A charter-party. 


In French 


CHARTEL. <A challenge to a single 
combat; also an instrument or writing be- 
tween two states for settling the exchange of 
prisoners of war. 


CHARTER, ov, In mercantile law. To 
hire or lease a vessel fora voyage. A “char- 
tered” is distinguished from a “seeking” 
ship. 7 East, 24. 


CHARTER, 2. Aninstrument emanating 
from the sovereign power, in the nature of a 
grant, either to the whole nation, or to a 
class or portion of the people, or to a colony 
or dependency, and assuring to them certain 
rights, liberties, or powers. Such was the 
“Great Charter” or “Mugna Charta,” and 
such also were the charters granted to certain 
of the English colonies in America. See 
Story, Const. § 161. 

An act of the legislative department of 
government, creating a corporation, is called 
the “charter” of the corporation. 

In old English law. The term denoted 
a deed or other written instrument under 
seal; & conveyance, covenant, or contract. 


In old Scotch law. A disposition made 
by a superior fo his vassal, for something to 


CHARTER-HOUSE 


be performed or paid by him. 
pt. 2, b. 2,¢. J, tit. 1. A writing which 
contains the grant or transmission of the 
feudal right to the vassal. Eysk. Inst. 2, 3, 
lige 


CHARTER-HOUSE. Formerly a con- 
yent of Carthusian mouks in London; now 
acollege founded and endowed by Thomas 
Button The governors of the charter-house 
are a corporation aggregate without a head, 
president, or superior, all the members being 
of equal authority. 3 Steph. Comm. (7th 
Ed.) 14, 97. 


CHARTER-LAND. Otherwise called 
“book-land,” is property held by deed under 
eértain rents and free services. It, in effect, 
differs nothing from the fres socage lands, 
and hence have arisen most of the freehold 
tenants, whe hold of particular manors, and 
owe suit and service to the same. 2 Bl. 
Comm. 90. 


CHARTER OF PARDON. In English 
law. An instrument under the great seal, 
by which a pardon is granted to a man fora 
felony or other offense. 


CHARTER OF THE FOREST. 
CHARTA DE FORESTA. 


Sea 


CHARTER-PARTY, A contract by 
which an entire ship, or some principal part 
thereof, is let toa merchant for the convey- 
ance of goods on a determined voyage to one 
or more places. Abb. Shipp. (241,) 315. A 
contract of alfreightinentin writing, by which 
the owner of a ship lets the whole or a part 
of lier to a merchant, for the conveyance of 
goods on a particular voyage, in considera- 
tion of the puyment of freight. 3 Kent, 
Coum, 201, 

A written agreement, not usnally under 
seal, by which a ship-owner lets an entire 
ship, or a part of it, to a merchant for the 
conveyance of goods, binding himself to 
_ transport them toa particular place fora sum 
of money which the merchant undertakes to 
pay as ireight for their carriage. Maude & 
P. Mer. Shipp. 227. 

The contract by which a ship is let is 
termed a “charter-party.” By it the owner 
Inay either let the capacity or burden of the 
ship, continuing the employment of the own- 
er’s master, crew, and equipments, or may 
surrender the entire ship to the charterer, 
whe then provides them himself. The master 
or part owner may be a charterer. Civil 
Code Cal. § 1959; Civil Code Dak. § 1127. 


197 


1 Forb. Inst. | 


CHATTEL 


CHARTER ROLLS. Ancient English 
records of royal charters, granted between 
the years 1199 and 1516. 


CHARTERED SHIP. A ship hired or 
freighted; a ship which is the subject-matter 
of a charter-party. 


CHARTERER, Inmereantilelaw. One 
who charters (#. ¢., hires or engiges) a ves- 
selforavoyage; afreighter. 2Steph. Comm. 
184; 38 Kent, Comm. 137. 


CHARTIS REDDENDIS. (For return- 
ing the charters.) An ancient writ which 
lay against one who had charters of fecffment 
intrusted te his keeping and refused to de- 
liver them. Reg, Urig. 159. 


CHARTOPHYLAX,. In old European 
law. A keeper of reeords or publie instru- 
menis; a chartulary; a registrar. Spelman. 

CHARUE., 
plow. 
plow. 


CHASE. The liberty or franchise of | 
hunting, one’s self, and keeping protected 
against all other persons, beasts of the chase 
within a specilied district, without regard to 
the ownership of the land, 2 Bl. Comm, 
414-416. 

A privileged place for the preservation of 
deer and beasts of the forest, of a middle 
nature between a forest and a park. It is 
com monty less than a forest, and not endowed 
with so many liberties, as officers, laws, 
courts; and yet it is of larger compass than 
a park, having more officers and game than 
apark. Every forest is a chase, bub every 
chase is not a forest. It differs from a park 
in that it is not inclosed, yet it must have 
certain metes and bounds, but it inay be in 
other men’s grounds, us well asin one’sown, 
Manwoed, 49. 


CHASTITY. Purity; continenee. That 
virtue which prevents the unlawful inter- 
course of the sexes. Also the state of purity 
or abstinence from unlawful sexual connec- 
tion. 


CHATTEL. An article of personal prop- 
erty; any species of property not amounting 
to a freehold or fee in land. 


The name given to things which in law aro 
deemed personal property. Chattels are divided 
inte chattels real and chattels personal; chattels - 
real being interesis in land which devoive after 
the manner of personal estate, as leaseholds. AS 
opposed te freeholds, they are regarded as person- 
alesiate. But, as being interests in real estate, 
they are called “chattels real,” to distinguish them 


In old English law. A 
Bestes des eharues; beasts of the 


CHATTEL 


from movables, which are called “chattels per- 
sonal.” Mozley & Whitley. 

Chattels personal are movables anly; chattels 
reul are such us savor only of the realty. 19 
Johns. 73. 

‘The term “chattels” is a more comprehensive 
one than “gocds,” as it includes animate as wellas 
{nanimate property. 2 Chit. Bl. Comm. 883, note. 
In a devise, however, they seem to be of the same 
import. Shep. Touch. 447; 2 Fonbl. Hq. 335. 


CHATTEHL INTEREST. An interest 
in corporeal hereditaments less than a free- 
hold. 2 Kent, Comm. 842. 


198 


| Crimes, 660. 


CHATTEL MORTGAGE. An instru- | 


ment of sale of personalty conveying the 
title of the property to the mortgagee with 
terms of defeasance; and, if tle Lerms of re- 
demption are not complied with, then, at 
cominon law, the title becomes absolute in 
the mortgagee. 


A transfer of personal property as security 


for a debt or obligation in such form that, 
upon failure of the morlgagor to comply with 


the terms of the contract, the title to the | 


property will be in the mortgagee. 
Mortg. 427. 

An absolute pledge, to become an absolute 
interest if not redeemed at a fixedtime. 2 
Caines Cas. 200, per Kent, Ch. 

A conditional sale of a chattel as security 
for the payment of a debt or the performance 
of some other obligation. Jones, Chat. 
Mortg. $ 1. 


A chattel mortgage is a conditional transfer or 


Thomas, 


conveyauce of the property itself. The chief dis- 


tinctions between it and a pledge are that in the 
latter the title, even after condition broken, does 
not pass to the pledgee, who has only a lien on the 
property, but remains in the pledgeor, who has the 
right to redeem the property at any time before its 
sale. Besides, the possession of the property must, 
iu all cases, accompany the pledge, and, at a sale 
thereof by the pledgee to satisfy his demand, he 
cannot become the purchaser; while by a chattel 
niortgage the title of the mortgugee becomes ab- 
solute at law, on the default of the mortgagor, 
aud it is not essential te the validity of the instru- 
ment that possession of the property should be 
delivered, and, on the foreclosure of the mort- 
gage, the mortgagee is at liberty to become the 
purchaser. 86 Cal, 414, 425, 441. 

The material distinction between a pledge and a 
mortgage of chattels is that a mortgage is a con- 
veyance of the legal title upon condition, and it 
becomes absolute in law if not redeemed by a 
given time; a pledge is a deposit of goods, redeem- 
able on certain terms, either with or without a 
fixed period for redemption. In pledge, the gen- 
eral property does not pass, as in the case of mort- 
gage, and the puwnee has only a special property 
iv. the thing deposited. The pawnee must choose 
between two remedies,—a bill in chancery fora 
judicial sale under s decree of foreclosure, or a 


| affecis or may affect the public.” 


CHECK 


the debtor to redeem, after reasonable notice te 
doso. 5 Blackf. 320. See, also, 3 Blackf. 309, 

In a conditioucté sale the purchaser has merely 
aright to re;urchase, and no debt or obligation 
exists on the part of the vendor; this distingnishes 
such a sale from a mortgage. 40 Miss. 402; 4 
Daly, 77. 

CHAUD-MEDLEY. A homicide com- 
mitted in the heat of an affray and while un- 
der the iniluence of passion; it is thus dis- 
tinguished from chunce-medley, which is the 
killing of a man in a casual afiray in self- 
defense. 4 Bl. Comm. 184. See 1 Russ. 


CHAUMPERT, A kind of tenure men- 
tioned in a patent of 35 Kdw. Il. Cowell; 
Blount. 


CHAUNTRY RENTS. Money paid to 
the crown by the servants or purchasers 
of chauntry-lands. See CHANTRY. 


CHEAT. Swindling; defrauding, “De- 
ceitful practices in defrauding or endeavoring 
to defraud another of his known right, by 
some wiliful device, contrary to the plain 
rules of common honesty.” Hawk. P. C. b. 
2,¢. 23, § 1. “The fraudulent obtaining the 
property of another by any deceitful and ille- 
gal practice or token (short of felony) which 
Steph. 
Crim. Law, 93. 

Cheats, punishable at common law, are such 
cheats (not amounting to felony) as are ef- 
fected by deceitful or illegal symbols or tokens 
which may affect the public at large, and 
against which common prudence could not 
have guarded. 2 Whart. Crim. Law, § 1116; 
2 East, P. C. 818, 


CHEATERS, or ESCHEATORS, were 
officers appointed to look after the king’s es- 
cheats, a duty which gave them great oppor- 
tunities of fraud and oppression, and in con- 


; Bequence many complaints were made of their 


misconduct. Hence it seems that a cheater 


| came to signify a fraudulent person, and 


thence the verb to cheat was derived, 
Wharton. 


CHECK, ve. To control or restrain; to 
hold within bounds. To verify or audit. 
Particularly used with reference to the con- 
trol or supervision of one department, bu- 


| reau, or office over another. 


CHECK, n. A draft or order upon a 
bank or banking-house, purporting to be 
drawn upon a deposit of funds, for the pay- 
ment at all events of a certain sum of money 
to a certuin person therein named, or to him 


sale without judicial process, on the refusal of | or his order, or to bearer, and payuble in- 


CHECK 


stuntly on demand. 
§ 1566. 

A check is a bill of exchange drawn upon 
a@ bank or banker, or a person described as 
sich upon the face thereof, and payable on 
demand, without interest. Civil Code Cal, 
§ 3254; Civil Code Dak. § 1983. 

A check differs from an ordinary bill of ex- 
change in the following particulars: (1) It is 
drawn on a bank or bankers, and is payable imme- 
diately on presentment, without any days of grace. 
(2) It is payable immediately on presentment, and 
no acceptance as distinct from payment is re- 
quired. (8) By its terms it is supposed to be drawn 
Upon a previous deposit of funds, and is an abso- 
lute appropriation of so much money in the hands 
of the bankers to the holder of the check, to re- 
main there until called for, sod cannot after no- 
tice be withdrawn by the drawer. 2 Story, 502; 8 
Bush, 397. 


CHECK-BOOK. A book containing 
blank checks on a particular bank or banker, 


with «an inner margin, called a “stub,” on 
which to note the number of each check, its 


2 Daniel, Neg. Inst. 


199 


amount and date, and the payee’s name, and | 


& memorandum of the balance in bank. 


CHECK-ROLL. In Englishlaw. A list 
or book, containing the names of sucli as are 
attendants on, or in the pay of, the queen or 
other great personages, as their household 
servants, 

CHECKER. The old Scotch form of ex- 
ehequer. 


CHEE. In Anglo-Norman law. Were 


or weregild; the price of the head or person, 


(capitis pretium.) 


CHEMERAGE. Inold frenchlaw. The 
privilege or perogative of the eldest, <A 
provincial term derived from ehemie7, (g. 0.) 
Guyot, Inst, 


CHEMIER. Inold French law. The eld- 
est born. <A term used in Poitou and other 
places. Guyot, Inst. 


CHEMIN. The road wherein every man 
goes; the king’s highway. 


CHEMIS. In old Scoteh law. 
dwelling or mansion house. 


CHEVAGEH. <A sum of money paid by 
villeins to their lords in acknowledgment of 
their bondage. 

Chevage seems also to have been used for 
asum of money yearly given to a man of 
power for his countenance and protection as 
achief orleader. Termes dela Ley; Cowell. 


A. chief 


CHEVANTIA. In old reeords. A loan 
or advance of money upon credit. Cowell. 


CHIEF JUSTICIAR 


CHEVISANCE. An agreement or com- 
position; an end or order set down between 
a creditor or debtor; an indirect gain in point 
of usury, ete.; also an unlawful bargain or 
contract. Wharton. 


CHEVETIAS. In old records. Pieces of 
ground, or heads at the end of plowed 
lands. Cowell. 


CHEZE. A homestead or homesfall 
which is accessory to a house. 


CHICANE. Swindling; shrewd cunning, 
The use of tricks and artifice. 


CHIEF, Principal; leading; head; emi- 
nent in power or importance; the most im- 
portant or valuable of several. 

Declaration in chief is a ileclaration for 
the principal cause of action. 1 Tidd, Pr. 
“19: 

Examination tn chief is the first exam- 
ination of a witness by the party who pro- 
duces him. I Greenl. Ev. § 445. 


CHIEF BARON, The presiding judge 
of the inglish court of exchequer; answer- 
ing to the chief justice of other courts, 3 
Bi. Comm. 44; 3 Steph. Comm. 401. 


CHIEF CLERK. ‘The principal clerical 
oilicer of a bureau or department, who is gen- 
erally charged, subject to the direction of his 
superior oflicer, with the superintendence of 
the administration of the business of the of- 
fice. 


CHIEF JUDGE. The judge of the Lon- 
don bankruptcy court is so called. 


CHIEF JUSTICE. The presiding, eld- 
est, or principal judge of a court of justice. 


CHIEF JUSTICE OF ENGLAND. 
The presiding judge in the queen’s bench 
division of the high court of justice, and, in 
the absence of the lord chancellor, president 
of the high court, and also an ew officio 
judge of the court of appeals. The full title 
is “Lord Chief Justice of England.” 


CHIEF JUSTICE OF THE COM- 
MON PLEAS. In England. The presid- 
ing judge in the court of common pleas, and 
afterwards in the common pleas division of 
the high eourt of justice, and one of the ex 
afficito judges of the high court of appeal. 


CHIEF JUSTICIAR. In old English 
law. <A high judicial officer and special mag- 
istrate, who presided over the aula regis of the 
Norman kings, and who was also the princi- 
pal ininister of state, the second man in the 


CHIEF LORD 


200 


kirgdom, and, by virtue of his office, guard- | 


ian of the realm in the king’s absence. 3 
Bl. Comm. 38. 


CHIEF LORD. The immediate lord of 


the fee, to whom the tenants were directly | 


and personally responsible. 


CHIEF PLEDGE. Tho worsholder, or 
chiet of the borough. Spelman. 


CHIEF RENTS. In English law. Were 
the annual payments of freeholders of man- 
ors; and were also called “quit-rents,” be- 
cause by paying them the tenant was freed 
from all other rents or services. 2 BI. 
Comm. 42. 


CHIEF, TENANT IN. 
feudal law. All the land in the king- 
dom was supposed to be holden medi- 
ately or iminediately of the king, whe was 
atyled the “Lord Paramount,” or “Lord 
Above All;” and those that held immediate- 
ly under him, in right of his crown and dig- 
nity, were called his tenants “in capife” or 
“in ehief,” which was the most honorable 
species of tenure, but at the same time sub- 
jected the tenant to greater and more burden- 
some services than inferior tenures did. 
Brown, 


CHIEFRIE. In feudal law. 
rent paid to the lord paramount, 


In English 


A small 


CHILD, This word has two meanings in 
law: (1) In the law of the domestic rela- 
tions, and as to descent and distribution, it 
is used strictly as the correlative of “parent,” 
and means a son or daughter considered as 
in relation with the father or mother. (2) 
In the law of negligence, and in laws for the 
protection of children, ete., it is used as the 
opposite of “adult,” and means the young of 
the human species, (generally under the age 
of puberty,) without any reference to parent- 
age and without distinction of sex. 


CHILDREN. Offspring; progeny. Le- 
gitimate offspring; children born in wedlock. 
7 Ves. 459; 5 Scott, N. R. 990. 


The general rule is that “children, "in a bequest 
or devise, means legitimate children. Under a de- 
yise or bequest to children, as o class, natural chil- 
dren are not included, unless the testator’s inten- 
tion to include them is manifest, either by express 
designation or necessary implication. 14N,J. Eq, 
159; 2 Paige, 11. 

Jn deeds, the word “children” signifies the im- 
mediate descendants of a person, in tho ordinary 
sense of the word, as contradistinguished from 
issue; unless there be some accompanying ex- 
pressions, evidenciug that the word is used in an 
enlarged seuss. Lewis, Perp. 196 


CHOIMIN 


In wills, where greater latitude of construction 
is allowed, in order to effect the obvious intention 
of the testator, the meaning of the word has some 
times been extended, so as to incinde grandchil- 
dren, and it has been held to be synonymous with 
issue. Lewis, Perp. 195, 196; 2 Crabb, Real Prop. 
pp. 38, 39, §§ 988, 989; 4 Kent, Comm. 845, 346, uote, 

The word “heirs,” in its natural signification, is 
a word of limitation; and it is presumed to be 
used in that sense, unless a contrary intention ap 
pears. But the term “children,” in its natural 
sense, is a word of purchase, and is to be taken to 
have been used as such, unless there are other ex- 
pressions in the will showing that the testator in- 
tended to usa itasa word of limitation only. 4 
Paige, 293; 3 Wend. 503. 

In the natural and primary sense of the word 
“children,” it implies iminediate offspring, and, 
in its legal acceptation, is nota word of limitation, 
unless itis absolutely necessary so to construe it 
in order to give effect to the testator’s intention. 
39 Ala, 24, 

“Children” is ordinarily a word of description, 
limited to persons standing in the same relation, 
and has the same offect as if all the names were 
given; but heirs, in the absenca of controlling or 
explanatory words, includes more remote descend- 


ants, and is to be applied per stirpes. 14 Allen, 
204. 
CHILDWIT. In Saxon law, The right 


which a lord had of taking a fine of his bond- 
woman gotten with child without his li- 
cense. Termes de la Ley; Cowell. 


CHILTERN HUNDREDS. In English 
law. The stewardship of the Chiltern Hun- 
dreds is a nominal office in the gift of the 
crown, usually accepted by members of the 
house of commons desirous of vacating their 
seats. By lawa member once duly elected to 
parliament is compelled to discharge the duties 
of the trust conferred upon him, and is not 
enabled at will to resign it. But by statute, 
if any member accepts any ottice of profit from 
the crown, (except officers in the army or 
havy accepting a new commission,) his seat 
is vacated. If, therefore, any member wishes 
to retire from tle representation of Lhe county 
or borough by which he was sont to pariia- 
ment, he applies to the lords of the treasury 
for the stewardship of one of the Chiltern 
Hundreds, which having received, and there 
by accomplished his purpose, he again re- 
signs the office. Brown. 


CHIMIN. In old Englishlaw. A road, 
way, highway. It is either the queen’s high- 
way (chiminus reyinw) or a private way. 
The first is that over which the subjects 
of the realm, and al) others under the pro- 
tection of the crown, have free lilorty to 
pass, though the property in the soil itseif 
belong to sume private individual; the last 
is that in which one person or more have lib- 


CHIMINAGE 


erty to pass over the Jand of another, by pre- 
seription or charter. Wharton. 


CHIMINAGE. A toll for passing on a 
way through a forest; called in the civil law 
“pedagium.” Cowell. 


CHIMINUS. The way by which the king 
and all his subjects and all under his protec- 
tion have a right to pass, though the property 
of the svil of each side where the way lieth 
may belong toa private man. Cowell. 


CHIMNEY MONEY, or HEARTH 
MONEY. A tax upon chimneys or hearths; 
an ancient tax or duty upon houses in Eng- 
land, now repealed. 


CHIPPINGAVEL. In old English law. 
A tax upon trade; a toll imposed upon trafic, 
or upon goods brought to a place to be sold. 


CHIRGEMOT, CHIRCHGEMOT. In 
Saxon law. An ecclesiastical assembly or 
court. Spelman. A synod or meeting ina 
chureh or vestry. 4 Inst. 321. 


CHIROGRAPH. In old English law. 
A deed or indenture; also the last part of a 
fine of land. 

An instrument of gift or conveyance at- 
tested by the subscription and crosses of the 
witnesses, which was in Saxon times called 
“chirographum,” and which, being some- 
what changed in form and manner by the 
Normans, was by them styled “eHarta.” 
Anciently when they made a chirograph or 
deed which required a counterpart, as we call 
it, they engrossed it twice upon one piece of 
parchment contrariwise, leaving a space be- 
tween, in which they wrote in capital letters 
the word “chirograph,” and then cut the 
parchment in two through the middle of the 
word, giving a part to each party. Cowell. 

In Scotch law. A written voucher for a 
debt. Bell. 

In civil and canon law. Aninstrument 
written out and subscribed by the hand of 
the party who made it, whether the king or 
a private person. Cowell. 


CHIROGRAPHA, In Romanlaw. Writ- 
ings emanating from a single party, the 
debtor. 


CHIROGRAPHER OF FINES. In 
English law. The title of the officer of the 
common pleas who engrossed fines in that 
court so as to be acknowledged into a per- 
petual record. Cowell. 


CHIROGRAPHUM. InRomanlaw. A 
handwriting; that which was written with 


201 


CHOREPISCOPUS 


a person’s own hand. An obligation which 
a person wrote or subscribed with his own 
hand; an acknowledgment of debt, as of 
money reveived, with a promise to repay. 
An evidence or voucher of debt; a security 
for debt. Dig. 26, 7, 57, pr. 
A right of action for debt. 


Chirographum apud debitorem re- 
pertum presumitur solutum. An evi- 
dence of debt found in the debtor’s posses- 
sion is presumed to be paid, Halk. Max. 20: 
Bell, Dict. 


Chirographum non extans presumitur 
solutum. An evidence of debt not existing 
is presumed to have been discharged. Tray. 
Lat. Max. 73. 


CHIRURGEON,. The ancient denom- 
ination of a surgeon. 
CHIVALRY. In feudal law. Knight- 


service. Tenure in chivalry was the same 
as tenure by knight-service. 2 Bl. Comm. 


61, 62. 
CHIVALRY, COURT OF. InEnglish 
law. The name of a court anciently held as 


a court of honor merely, before the earl-mar- 
shal, and as a criminal court before the lord 
high constable, jointly with the earl-marshal. 
It had jurisdiction as to contracts and other 
matters touching deeds of arms or war,as well 
as pleas of life ormember. It also corrected 
encroachments in matters of coat-armor, 
precedency, and other distinctions of fami- 
lies. It is now grown entirely out of use, 
on account of the feebleness of its jurisdic- 
tiou and want of power to enforce its judg- 
Incnts, a3 if could neither fine nor imprison, 
nol being a court of record, 3 Bl. Comm. 68; 
4 Broom. & H. Comm. 860, note. 


CHOP-CHURCH. A word mentioned 
in 9 Hen. VI. c. 65, by the sense of which it 
was in those days a kind of trade, and by the 
judges declared to be lawful. But Brooke, 
in his abridgment, says it was only permissi- 
ble by law. It was, without doubt, a nick- 
name given to those who used to change 
benefices, as to “chop and change” is a 
common expression. Jacob. 


CHOPS. The mouth of a harbor. 
St. Mass. 1882, p. 1288. 


CHORAL. In ancient times a person ad- 
mitted to sit and worship in the choir; a 
chorister. 


CHOREPISCOPUS. In old European 
law, <A rural bishop, or bishop’s vicar. 
| Spelman; Cowell 


Pub 


Mi 


CHOSE 


CHOSE. A thing; an article of property. 


A chose is a chattel personal, (Williams, | 


Vers, Prop. 4,) and is either in possession or 
in action. 


CHOSE IN ACTION. A right to per- 
sonal] things of which the owner has nof the 
possessiou, but merely a right of action for 
their possession. 2 Bl. Comm. 389, J97; 1 
Chit. Pr. 99, 

A xight to receive or recover a debt, de- 
mand, or damages on a cause of action ex 
contractu, or for a tort connected with con- 
tract, but which cannot be made available 
without recourse to an action. 

Personalty to which the owner has a right 
of possession in future, or a right of imme- 
diate possession, wrongfully withheld, is 
termed by the law a “chose in aclion.” 
Code Ga. 1882, § 2239. 

Chose in action is a phrase which Is sometimes 
used to signify a rightof bringing an action, and, 
at others, the thing itself which forms the subdject- 
matter of that right, or with regard to which that 
right is exercised; but it more proporly includes 
the idea both of the thing itself and of the right 
of action as annexed toit. Thus, when it is said 
that a debt is a chose in action, the phrase con- 
yeys the idea, not only of the thing itself, i.e¢., 
the debt, but also of the right of action or of re- 
covery possessed by the person to whom the debt 
is due. When it is said that a chose in action can- 
not be assigued, it means that a thing to whicha 
right of action is annexed cannot be transferred to 
another, together with such right. Brown. 

A chose in action is any right to damages, 
whether arising from the commission of a 
tort, the omission of a duty, or the breach of 
acontract. 4 Ala. 350; 8 Port. 36. 


CHOSE IN POSSESSION. A thing in 
possession, as distinguished from a thing in 
action. See CHosE IN AcTION. Taxes and 
customs, if paid, are a chose in possession; 
if unpaid, a chose in action. 2 Bl. Comm. 
408. 


CHOSE LOCAL. A localthing; a thing 
annexed to a place, asa mill. Kitehin, fol. 
318; Cowell; Blount. 


CHOSE TRANSITORY. A thing which 
is movable, and may be taken away or car- 
ried from place to place. Cowell; Blount. 


CHOSEN FREEHOLDERS. Under 
the municipal organization of the state of 
New Jersey, each county has a hoard of 
ollicers, called by this name, composed of 
representatives from the cities and town- 
ships within its limits, and charged with 
administering the revenues of the county. 
They correspond to the “county commission- 
ers” or “‘supervisurs” in other states. 


2 


02 CHURCH 


1} CHOUT. In Hindu law. A fourth, a 
fourth part of the sum in litigation. The 
“Mahratti chout” is a fourth of the vev- 
enues exacted as tribute by the Mahrattas. 


CHREMATISTICS. 
wealth. 


CHRENECRUDA.,. Under theSalic law. 
This was a ceremony performed by a person 
who was too poor to pay his debt or fine, 
whereby he applied to a rich relative to pay 
it for him. It consisted (after certain pre- 
liminaries) in throwing green herbs upon 
the party, the effect of which was to bind 
him to pay the whole demand. 


CHRISTIAN. Pertaining to Jesus Christ 
or the religion founded by him; professing 
Christianity. The adjective is also used in 
senses more remote from its original meaning. 
Thus a “court Christian” is an ecclesiastical 
| court; a “Christian name” is that conferred 

upon a person at baptism into the Christian 
| chureh. Asa noun, it signifies one who ac- 
| cepts and professes to live by the doctrines 
| 


The science of 


and principles of the Christian religion. 


CHRISTIAN NAME. The baptismal! 
name distinct from the surname. It has 
been said from the bench that a Christian 


name may consist of a single letter. Whar- 
ton. 
CHRISTIANITATIS CURIA. The 


court Christian. An ecclesiastical court, as 
opposed to a civil or lay tribunal. Cowell, 


CHRISTIANITY. The religion found 
ed and established by Jesus Christ. 

Christianity has been judicially declared 
to be a part of the common luw: 


CHRISTMAS-DAY. A festival of the 
Christian church, observed on the 25th of 
December, in memory of the birth of Jesus 
Christ. 


CHRYSOLOGY. That branch of the 
science of political economy which relates 
to the production of wealth. 


CHURCH. In its most general sense, 
the religious society founded and established 
by Jesus Christ, to receive, preserve, aud 
propagate his doctrines and ordinancea., 

A body or community of Christians, unit- 
ed under one form of government by the 
profession of the same faith, and the obsery- 
ance of the same ritual and ceremonies. 

The term may denote either a socicty of 
persons who, professing Christianity, hold 
certain doctrines or observances which differ- 
| entiate them from other like groups, and 


CHURCIE 


‘yho use a common discipline, or the build- 
ing in which such persons habitually as- 
semble for public worship. 

The body of communicants gathered into church 
~rder, according to established usage in any town, 
garish, precinct, or religious gociety, established 
according to law, and actually connected and asso- 
elated therewith for religious purposes, for the 
time being, is to be regarded as the church of such 
‘society, as to all questions of property depending 
upon that relation. 10 Pick. 193. See, also, 3 Me. 
Babe. 

A congregational church is a voluntary associa- 
tion of Christians united for discipline and wor- 
ahip, connected with, and forming a part of, some 
religious society, having a legal existence. 3 Mo, 
"24S. 

In English eeclesiastical law. An institu- 
dion established by the Jaw of the land in 
reference to religion. 38 Steph. Comm. 54. 
The word “chureh” is said to mean, in 
strictness, not the material fabrie, but the 
eure of souls and theright of tithes. 1 Mod. 
201. 


CHURCH BUILDING ACTS. Stat- 
ates passed in England in and since the year 
1818, with the object of extending the ac- 
commodation aiforded by the national church, 
so as to make it more commensurate with 
the wanta of the people. 3 Steph. Comm. 
152-164, ‘ 


CHURCH DISCIPLINE ACT. The 
statute 38 & 4 Vict. ¢. 86, containing regula. 
tions for trying clerks in holy orders charged 
with offenses against ecclesiastical law, and 
for enforcing sentences pronounced in such 
eases. Phillim. Ecce. Law, 1314, 


CHURCH OF ENGLAND. The Chureh 
of England is a distinct branch of Christ’s 
church, and is also an institution of the 
atate, (see the first clause of Jfagna Charta,) 
of which the sovereign is the supreme head 
by act of parliament, (26 Hen. VIII. c. 1,) 
Dut in what sense is nob agreed. The soy- 
ereign must be a member of the chureh, and 
every subject is in theory a member. Whar- 
ton. 


CHURCH RATEH. In English law. A 
sum assessed for the repair of parochial 
ehurches by the representatives of the pa- 
rishioners in vestry assembled. 


CHURCH REBVE. A church warden; 
an overseer of a church. Now obsolete. 
Cowell. 


CHURCH-SCOT. In old English jaw. 
Customary obligations paid to the parish 
priest; from which duties the religious some- 


203 


CIRCAR 


times purchased an exemption for themselves 
and their tenants. 


CHURCH WARDENS. A apecies of 
ecclesiastical officers who are intrusted with 
the care and guardianship of the church build- 
ingand property. ‘These, with the rectorand 
vestry, represent the parish in its corporate 
eapacily. 


CHURCHESSET. In old Englishlaw. A 
certain portion or measure of wheat, an- 
ciently paid tothe church: on St. Martin’s day; 
and which, according to Fleta, was paid as 
well in the time of the Britons ag of the 
English. Fleta, lib. 1, ¢. 47, § 28. 


CHURCHYARD. Seo CemErury. 


CHURL. In Saxon law. <A freeman of 
inferior rank, chiefly employed in husbandry. 
1 Reeve, Eng. Law, 5. A tenant at will of 
free condition, who held land from a thane, 
on condition of rents and services. Cowell. 
See CEorL. 


CI. Fr. So; here. 
help you God. 
bien, as well. 


CIBARIA. Lat. Inthecivil law. Food; 
victuals. Dig. 34, 1, 


CINQUE PORTS. Five {now seven) 
ports or havens on the south-east coast of 
England, towards France, formerly esteemed 
the most important in the kingdom. They 
are Dover, Sandwich, Romney, Hastings, and 
Uythe, to which Winchelsea and Rye have 
been sinceadded. They had similar franchises, 
in some respects, with the counties palatine, 
and particularly an exclusive jurisdiction, 
(before the mayor and juvats, corresponding 
toaldermen, of the ports,) in which the king’s 
ordinary writ did not run. $8 Bl. Comm. 79. 

The 18 & 19 Vict. c. 48, (amended by 20 & 
21 Viet. c.1,) abolishes all jurisdiction anu 
authority of the lord warden of the Cinjue 
Ports and constable of Dover Castle, in or in 
relation to the administration of justice in 
actions, suits. or other civil proceedings at 
law or in equity. 


Ci Dietu vous eyde, so 
Ci devant, heretofore. Ci 


CIPPI. An old English law term for the 
stocks, an instrument in which the wrists or 
ankles of petty offenders were confined. 


CIRCADA. A tribute anciently paid to 
the bishop or arehbishop for visiting churehes. 
Du Fresne. 


CIRCAR. In Hindu law. Head of af- 
fairs; the state or governiuent; a grand di- 
vision of a province; aheadman. A name 


H 


CIRCUIT 


ased by Europeans tn Bengal to denote the 
Hindu writer and accountant employed by 
themselves, or in the public offices. Whar- 
ton. 


CIRCUIT. A division of the country, 
appointed for a particular judge to visit for 
the trial of causes or for the administration 
of justice. Bouvier. 

Circuits, as the term is used in England, 
may be otherwise defined to be the periodical 
progresses of the judges of the superior courts 
of common law, through the several counties 
of England and Wales, for the purpose of ad- 
ministering civil and eriminal justice. 


CIRCUIT COURTS. The name ofa 
system of courts of the United States, invest- 
ed with general original jurisdiction of such 
matters and causes us are of Federal cogni- 
zance, except the matters specially delegated 
to the district courts. 

The United States circuit courts are held by one 
of the justices of the supreme court appointed for 
the circuit, (and bearing the name, in that capac- 
ity, of cirewit justice,) together with the circuit 
juage and the district judge of the district in which 
they areheld. Their business is not only the super- 
vision of trials of issues in fact, but the hearing of 
causes as a court in banc; and they have equity 
48 well as common-law jurisdiction, together with 
appellate jurisdiction from the deerces and judg- 
ments of the district courts. 1 Kent, Comm. 301- 
BOg. 

In several of the states, cirvcutt court is 
the name given toa tribunal, the territorial 
jurisdiction of which comprises several coun- 
tics or districts, and whose sessions are held 
in such counties or districts alternately. 
These courts usually have general original 
jurisdiction. 


CIRCUIT COURTS OF APPEALS. 
A system of courts of the United States (one 
in each circuit) created by act of congress of 
March 3, 1891, composed of the circuit jus- 
tice, the circuit judge, and an additional cir- 
cuit judge appointed for each such court, and 
having appellate jurisdiction from the circuit 
and district courts except in certain specified 
classes of cases. 


CIRCUIT PAPER. In Engtish practice. 
A paper containing a statement of the time 
and place at which the several assises will be 
held, and other statistical information con- 
nected with the assises. Holthouse. 


Cireuitus est evitandus; et boni judi- 
cis est lites dirimere, ne lis ex lite oria- 
tur. 6 Coke, 381. Circuity is to be aveided; 
and it is the duty of a good judge to deter- 


204 


CIRCUMSTANCES 


mine litigations, lest one lawsuit arise out 
of another. 


CIRCUITY OF ACTION. This oc- 
curs where a litigant, by a complex, indirect, 
or roundabout course of legal proceeding, 
makes two or more actions necessary, in or- 
der to effect that adjustment of rights be- 
tween all the parties concerned in the trans- 
action which, by a more direct course, might 
have been accomplished in a single suit. 


CIRCULAR NOTES. Similar instru- 
inents to “letters of credit.” They are drawn 
by resident bankers upon their foreign cor- 
respondents, in favor of persons traveling 
abroad. ‘The correspondents must be satis- 
fied of the identity of the applicant, be- 
fore payment; and the requisite proof of such 
identity is usually furnished, upon the ap 
plicant’s producing a letter with his signa- 
ture, by a comparison of the signatures 
Brown. 


CIRCULATING MEDIUM, Thisterm 
is more comprehensive than the term “mon. 
ey,” as it is the medium of exchanges, or 
purchases and sales, whether it be gold or 
silver coin or any other article. 


CIRCUMDUCTION. ‘InScotechlaw. A 
closing of the period for lodging papers, or 
doing any other act required in a cause. 
Paters. Comp. 


CIRCUMDUCTION OF THE TERM, 
In Scotch practice. The sentence of a judge, 
declaring the time elapsed within which a 
proof ought to have been led, and precluding 
the party from bringing forward any further 
evidence. Bell. 


CIRCUMSPECTE AGATIS. The title 
of a statute passed 18 Edw. I., A. D. 1285, 
anu so called from the initial words of it, the 
object of which was to ascertain the bonnda- 
ries of ecclesiastical jurisdiction in some par- 
tieulars, or, in other words, to regulats the 
jurisdiction of the ecclesiastical and tempo- 
ral courts. 2 Reeve, Eng. Law, 215, 216. 


CIRCUMSTANCES. A principal fact 
or cvont being the object of investigation, the 
circumstances are the related or accessory 
facts or occurrences whieh attend upon it, 
which closely precede or follow it, which sur- 
round and accompany it, which depend upon 
it, or which support or qualify it. 

The terms “circumstance” and “fact” are, in 
many applications, synonymous; but the true cia- 
tinction of acircumstauce is its relative character, 
* Any fact may be a circumstance with refareng 


—_ 


CIRCUMSTANCES 


to any other fact.” 1 Benth, Jud. Evid. 42, note; 
Id. 142. 

Thrift, integrity, good repute, business capaci- 
ty, and stability of character, for example, are 
“circumstances” which may be very properly cor- 
sidered in determining the question of “adequate 
security.” 5 Redf. Sur. 600. 


CIRCUMSTANTIAL EVIDENCE. 
Evidence directed to the attending cireum- 
stances; evidence which inferentially proves 
the principal fact by establishing a condition 
of surrounding and limiting circumstances, 
whose existence is a premise from which the 
existence of the principal fact may be con- 
cluded by necessary laws of reasoning. 


When the existence of any fact is attested by 
Witnesses, as having come under the cognizance 
of their senses, or is stated in documents, the gen- 
uineness and yeracity of which there seems no rea- 
gon to question, the evidence of that fact is said to 
be direct or positive. When, on the contrary, the 
existence of the principal fact is only inferred 
from one or more circumstances which have been 
estublished directly, the evidence is said to be cir- 
cumstantial. And when the existenceof the prin- 
cipal fact does not follow from the evidentiary 
facts as a necessary consequence of the Jaw of nat- 
ure, butis deduced from them by a process of proba- 
ble reasoning, the evidence and proof are suid to 
be presumptive. Beat, Pres. 246; Id. 12, 

All presumptive evidence is circumstantial, be- 
cause necessarily derived from or made up of cir- 
cumsiances, but all circumstantial evidence is not 
prosumptive, that 1s, itdoes not operate in the way 
of presumption, being sometimes of a higher 
grade, and leading to necessary conclusions, in 


stead of probable ones. Burrill 
CIRCUMSTANTIBUS, TALES DE. 
See TALES. 
CIRCUMVENTION. In Scotch law. 


Any act of fraud whereby a person is reduced 
toa deed by decreet. It has the same sense 
in the civillaw. Dig. 50, 17, 49, 155. 


CIRIC-BRYCH. In old English law. 
Any violation of the privileges of « church. 


CIRIC SCHAT. In old English law. 
Church-seot, or shot; an ecclesiastical due, 
payable on the day of St. Martin, consisting 
chiefly of corn. 


CIRLISCUS. A ceorl, (gq. 0.) 


CISTA. A box or chest for the deposit of 
charters, deeds, and things of value. 


CITACION. In Spanish law. Citation; 
summons; an order of a court requiring a 
person against whom a suit has been brought 
to appear and defend within a given time. 


CITATIO, 
court, 


A citation or summons to 


205 


CITE 


CITATIO AD REASSUMENDAM 
CAUSAM. A summons to take up the 
cause. A process, in the civil law, which 
issued when one of the parties to a suit died 
before its determination, for the plaintiff 
against the defendant's heir, or for the plain- 
tiff’s heir against the defendant, as the case 
might be; analogous to a modern bill of re- 
vivor. 


Citatioestdejurinaturali, A summons 
is by natural right. Cases in Banco Regis 
Wi, Ili. 4538. 


CITATION. In practice. A writ is- 
sued out of a court of competent jurisdic- 
lion, commanding 2 person therein named to 
appear on a day named and do something 
therein mentioned, or show cause why he 
should not. Proc. Prac. 

The act by which a person is so summoned 
or cited. 

It is used in this sense, in American law, in 
the practice upon writs of error from the 
United States supreme court, and in the pro- 
ceedings of courts of probate in many of the 
states. 

This is also the name of the process used 
in the English ecclesiastical, probate, and 
divorce courts to call the defendant or re- 
spondent before tiem. 3 Bl. Comm. 100; 3 
Steph. Comm. 720. 

In Scotch practice. The ealling of a 
party to an action done by an oflicer of the 
court under a proper warrant. 

The service of a writ or bill of summons. 
Paters. Comp. 


CITATION OF AUTHORITIES. The 
reading of, or reference to, lega] anthorities 
and precedents, (such as constibulions, stat- 
utes, reported cases, and elementary trea- 
tises,) in arguments to courts, or in legal 
text-books, to establish or fortify the propo- 
sitions advanced. 


Citationes non concedantur priusquam 
exprimatur super qua re fieri debet ci- 
tatio. Citations should not be granted be- 
fore it is stated about what matter the cita- 
tion is to be made. A maxim of ecclesiastical 
law. 12 Coke, 44. 


CITE. L. Fr. City; a city. 
Lound?’, city of London. 


CITE. To summon; to command the 
presence of a person; to notify a person of 
legal proceedings against him and require 
his appearance thoreto. 

Yo read or refer to legal authorities, in an 
argument to a court or elsewhere, in support 


Cite de 


CITIZEN 


206 


CIVIL ACTION 


of propositions of law sought to be estah- | inhabitant of a city.) When it is designed 


lished. 


CITIZEN. In general. A member of 
@ free city or jural society, (civitas,) possess- 
ing all the rights and privileges which can 
be enjoyed by any person under its constitu- 
tion and government, and subject to the cor- 
responding duties, 


in American law. One who, under the 
constitution and laws of the United States, 
has a right to vote for civil officers, and him- 
self is qualified to fill elective offices. 

One of the sovereign people. A constitn- 
ent ember of the sovereignty, synonymous 
with the people. 19 How. 404. 

A member of the civil state entitled to all 
its privileges. Cooley, Const. Law, 77. 

The term “citizen” has come to us derived from 


antiquity. It appears to have been used in the 
Roman government to designate a person who had 


the freedom of the city, and the right to exercise | 
all political and civil privileges of the government. | 


There was also, at Rome, a partial citizenship, in- 
cluding civil, but not political, rights. Complete 
citizenship embraced both. 15 Ind. 451. 


All persons born or naturalized in the 
United States, and subject to the jurisdiction 
thereof, are citizens of the United States and 
of the state wherein they reside. Amend. 
XIV. Const. U. 8. 


Theve is in our political system a government of 
each of the several states, and a government of 
the United States. Each is distinct from the 
others, and has citizens of its own, who owe it al- 
legiance, and whose rights, within its jurisdiction, 
it must protect. The same person may be at the 
same time a citizen of the United States and a cit- 
izen of a state; but his rights of citizenship under 
one of these governments will be different from 
those he has under the other. The government of 
the United States, although itis, within the scope 
of its powers, supreme and beyond the states, can 
neither grant nor secure to its citizeus rights or 
privileges which are not expressly or by implica- 
tion placed under its jurisdiction. All that cannot 
be so granted or secured are left to the exclusive 
protection of the states. 92 U. S. 542. 

“Citizen” and “inhabitant” are not synonymous. 
One may be a citizen of a state without being an 
Inhabitant, or au inhabitant without being a citi- 
zen. 4 Har. (Del.) 383. 

* Citizen” is sometimes used as syuonymous with 


“resident;” asin a statute authorizing funds to bo | 


distributed among the religious societies of a 
township, proportionably to the number of their 
members who are citizens of the township. 11 
Ohio, 24. 

In Bnglish law. An inhabitant of a 
city. 1 Rolle, 188. The representative of a 
eity, in parliament. 1 Bl. Comm. 174. It 
will be perceived that, in the English usage, 
the word adheres closely toits original mean- 
ing, as shown by its derivation, (ctvis, a free 


to designate an inhabitant of the country, or 
one amenable to the laws of the nation, “sub- 
ject” is the word there employed. 


CITIZENSHIP. 
citizen, (q. v.) 


CITY. In England. An incorporated 
town or borough which is or has been the 
see of a bishop. Co. Litt. 108; 1 Bl. Comm. 
114; Cowell. 

A large town incorporated with certain 
privileges. The inhabitants of a city. The 
citizens. Worcester. 

In America. A city is a municipal cor- 
poration of a larger class, the distinctive feat- 
ure of whose organization is its government 
by a chief executive (usually called “mayor” 
and a legislative body, composed of repre- 
sentatives of the citizens, (usually called a. 
“council” or “bourd of alderimen,”) and oth- 
er officers having special functions. 


CITY OF LONDON COURT. A court 
having a loeal jurisiiction within the city of 
London. It is to all intents and purposes a 
county court, having the same jurisdiction 
and procedure. 


CIVIL. In its original sense, this word 
means pertaining or appropriate to a member 
of a civites or free political community; nat- 
ural or proper to a citizen. Also, relating to 
the community, or to the policy and govern- 
ment of the citizens and subjects of a state. 

In the language of the law, it has various 
significations. In contradistinction to bar- 
bavous or savage, it indicates a state of society 
reduced to order and regular government; 
thus, we speak of civil life, civil society, civil 
government, and civil liberty. In contracis- 
tinction to criminal, it indicates the private 
rights and remedies of men, as members of 
the community, in contrast fo those which 
are public and relate to the government; 
thus, we speak of civil process and criminal 
process, civil Jurisdiction and criminal juris- 
diction. 

It is also used in contradistinction to mili- 
tary or ecclesiastical, to natural or foreign; 
thus, we speuk of acivil station, as opposed to 
a military or an ecclesiastical station; a civi) 
death, 1s opposed to a natural death; a civil 
war, as opposed to a foreign war. Story, 
Const. § 791. 


CIVIL ACTION. In the civil law. 
A personal action which is instituted to com- 
pel payment, or the doing some other thing 
which is purely civil. 


The status of being & 


* 


CIVIL ACTION 


aeriminal action, it is one which seeks the 
establishment, recovery, or redress of private 
and civil rights. 


Civil suits relate to and affect, as to the parties 


against whom they are brought, only individual 
rights which are within their individual control, 
and which they may part with at their pleasure. 
The design of such suits is the enforcement of 
merely private obligations and duties. Criminal 
prosecutions, on the other hand, involve public 
wrongs, or a breach and violation of public rights 
and duties, which affect the whole community, 
eousidered as such in its social and aggregate ca- 
pacity. ‘The end they have in view is the preven- 
tion of similur offenses, uot atonement or expia- 
tion for crime committed. 18 N. ¥. 128, 

Civil cases are those which involve disputes or 
contests between man and man, and which only 
terminate in the adjustment of the rights of plain- 
tiffs and defendants. They ineludeall cases which 
cannot legally be denominated “criminal cases.” 
T. U. P. Charlit, 175. 

In code practice. <A civil action is a 
proceeding in a court ot justice in which one 
party, known as the “plaintiff,” demands 
against another party, known us the “defend- 
ant,” the enforcement or protection of a pri- 
vate right, or the prevention or redress of a 
private wrong. It may also be brought for 
the recovery of a penalty or forfeiture. Rey. 
Code Iowa 1880, § 2505. 

The distinction between actions at law 
and suits in equity, and the forins of all such 
actions aud suits, heretofore existing, is abol- 
ished; and there shall be in this state, here- 
after, but one form of action for the enforce- 
ment or protection of private rights and the 
redress of private wrongs, which shall be de- 
nominated a “civil action.” Code N.Y. $69. 


CIVIL BILL COURT. A tribunal in 
freland with a jurisdiction analogous to that 
of the county courts in England. The judge 
of it is also chairman of quarter sessions, 
{where the jurisdiction is more extensive 
than in England,) and performs the duty of 
revising barrister. Wharton. 


CIVIL COMMOTION. Aninsurrection 
of the people for general purposes, though it 
may not amount to rebellion where there is 
ausurped power. 2 Marsh. Ins. 793. 


CLVILCORPORATIONS. An old En- 
glish term for all lay corporations which are 
not eleemosynary or charitable. 

Civil corporations are those which relate 
to temporal police; such are the corporations 
of the cities, the companies for the advance- 
ment of commerce and agriculture, literary 
societies, colleges or universities founded for 
the instruction of youtli, and the like. Re- 


207 


a 


CIVIL LAW 


Atcommon law. Asdistinguishedfrom | liglous corporations are those whose estab- 


lishment relates only to religion; such are the 
congregations of the different religious per- 
suasions. Civil Code La. act. 431. 


CIVIL DAMAGE ACTS. Acts passed 
in many of the United States which provide 
an action for damages ayainsta vendor of in- 
toxicating liquors, (and, in some cases, against 
his lessor,) on behalf of the wife or family of 
a person who has sustained injuries by rea- 
son of his intoxicat‘on. 


CIVIL DEATH. That cinge in a per- 
son’s legal and civil condition which deprives 
him of civic rights and juridical capacities and 
qualifications, as natural death extinguishes 
his natural condition. It follows as a conse- 
quence of being attainted of treason or fel- 
ony, in English law, and anciently of enter- 
ing a monastery or abjuring the realm. The 
person in this condition is said to be civéliter 
mortuus, civilly dead, or dead in law. 


CIVILINJURY. Injuries to person or’ 
property, resulting from a breach of contract, 
delict, or criminal offense, which may be re- 
dressed by means of a civil action. 


CIVIL LAW. The “Roman Law” and 
the “Civil Law” are convertible phrases, 
meaning the same system of jirisprudence; 
itis now frequently denominated the “ Roman 
Civil Law.” 

The word “civil,” as applied to the laws in force 
in Louisiana, before theadoption of the Civil Code, 
is not used in contradistinction to the word “crim- 
inal,” but must be restricted tothe Roman law. It 
is used in contradistinction to the laws of England 
and those of the respective states. 5 La. 493. 

1. The system of jurisprudence held and 
administered In the Roman empire, partic- 
ularly as set forth in the compilation of 
Justinian and his suecessors,—eom prising 
the Institutes, Code, Digest, and Novels, and 
collectively denominated the “Corpus Juvis 
Civilis,”—as distinguished from the common 
law of England and the canon law. 

2. That rule of action whieh every par- 
ticular nation, commonwealth, or city has es- 
tablished peculiarly for itself; more properly 
called “municipal” law, to distinguish it 
from the “law of nalure,” and from interna- 
tional] law. 

The law which a people enacts js called the 
“civil law” of that people, but that law which 
natural reason appoints for all mankind is 
called the “law of nations,” because all na- 
tions use it. Bowyer, Mod, Civil Law, 19. 

3. That division of municipal law which is 
occupied with the exposition and enforce- 


CIVIL LIBERTY 


ment of civil rights, as distinguished from 
ertminad law. : 


CIVIL LIBERTY. The liberty of a 
member of society, being a man’s natural 
liberty, so far restrained by human laws (and 
no further) as is necessary und expedient for 
the general advantage of the public. 1 BI. 
Comm. 125; 2 Steph. Comm. 487. The 
power of doing whatever the laws permit, 
1 Bl. Comm. 6; Inst. 1, 3,1. See LIBERTY. 


CIVIL LIST. In English public law. 
An annual sum granted by parliament, at the 


commencement of each reign, for the expense | 


of the royal household and establishment, as 
distinguished from the general exigencies of 
the state, being a provision made for the 
crown out of the taxes in lieu of its proper 
patrimony, and in consideration of the as- 
signment of that patrimony to the public use. 
2Steph. Comm. 591; 1 Bl. Comm. 332. 


CIVIL OBLIGATION. An obligation 
binding in law, and enforceable in a court of 
justice. Poth. Obl. 173, 191. 


CIVIL OFFICER. Any officer of the 
United States who holds his appointment 
under the nalional government, whether his 
duties are executive or judicial, in the high- 
est or the lowest departments of the govern- 
ment, with the exception of officers of the 
army and navy. 1 Story, Const. § 792, 


CIVIL REMEDY. The remedy afforded 
by law to a private person in the civil courts 
in so far as his private and individual rights 
have been injured by a delict or crime; as 
distinguished from the remedy by eriminal 
prosecution for the injury to the rights of 
the public. 


CIVIL RESPONSIBILITY. The lia- 
bility to be called upon to respond to an ac- 
tion at law for an injury caused by a delict 
or crime, a3 Opposed to criminal responsibili- 
ty, or liability to be proceeded against in a 
criminal tribunal. 


CIVIL RIGHTS. Rights appertaining 
to a person in virtue of his citizenship in a 
state or community. Rights capable of be- 
ing enforced or redressed in a civil action. 
Also a term applied to certain rights secured 
to citizens of the United States by the thir- 
teenth and fourteenth amendments to the 
constitution, and by various acts of congress 
made in pursuance thereof. 


CIVIL SERVICE. This term properly 
{neludes all functions under the government, 
except military functions. “1 general it is 


208 


CIVILIZATION 


confined to functions in the great admints 
trative departments of state. Wharton. 


CIVIL SIDE. When the same court has 
jurisdiction of both civil and criminal mat- 
ters, proceedings of the first class are often 
said to be on the civil side; those of the sec 
ond, on the criminal side, 


CIVIL WAR. An internecine war. A 
war carried on between opposing masses of 
citizens of the same country or nation. 

Before the declaration of independence, the 
war between Great Britain and the United 
Colonies was a civil war; but Instantly on 
that event the war changed its nature, and 
became a public war between independent 
governments. 8 Dall. 199, 224, 


CIVILIAN. One whois skilled or versed 
in the civillaw. <A doctor, professor, or stu. 
dent of thecivil law. Alsoa private citizen, 
as distinguished from such as belong to the 
army and navy or (in England) the church, 


CIVILIS. Civil, as distinguished from 
criminal. Civilis actio, acivilaction, Bract. 
fol. 1018. 


CIVILISTA. In old English law. A 
civil lawyer, or civilian. Dyer, 267. 


CIVILITER. Civilly. In a person's 
civil character or position, or by civil (not 
eriminal) process or procedure. This term 
is used in distinction or opposition to the 
word “criminaliter,”—criminally,—to dis- 
tinguish civil actions from criminal prosecu- 
tions. 


CIVILITER MORTUUS. Civilly dead; 
dead in the view of the law. The condition 
of one who has lost his civil rights and ca. 
pacities, and is accounted dead in law. 


CIVILIZATION. In practice. A law; 
an act of justice, or judgment which renders 
a criminal process civil; performed by turn- 
ing an information into an inquest, or the 
contrary. Wharton. 

In public law. This is a term which 
covers several states of society; it is relative, 
and has not a fixed sense, but it implies an 
improved and progressive eundition of the 
people, living under an organized govern- 
ment, with systematized labor, individual 
ownership of the soil, individual accumula. 
tions of property, humane and somewhat 
cultivated manners and customs, the institu. 
tion of the family, with well-defined and re. 
spected domestic and social relations, insti. 
tutions of learning, intellectual activity, ete. 
19 Ind. 56. 


cryvis 


CIvIsS. Lat. In the Roman law. A 
citizen; as distinguished from incola, (an in- 
habitant;) origin or birth constituting the 
former, domicile the latter. Code, 10, 40, 7. 


CIVITAS. Lat. In the Roman law. 
Any body of people living under the same 
laws; a state. Jus civitatis, the law of a 
state; civillaw. Inst. 1,2, 1,2. Céritates 
federate, towns in alliance with Rome, and 
considered to be free. Butl. Hor, Jur. 29, 

Citizenship; one of the three status, con- 
ditions, or qualifications of persons. Mac- 
keld. Rom. Law, § 131. 


Civitas et urbs in hoc differunt, quod 
incole dicuntur civitas, urbs vero com- 
plectitur sedificia. Oo. Litt. 409, A city 
and a town differ, in this: that the inhabit- 
ants are called the “city,” but town includes 
the buildings. 


CLAIM, e To demand as one’s own; 
to assert a personal] right to any property or 
any right; to demand the possession or en- 
joyment of something rightfully one’s own, 
and wrongfully withheld. 


CLAIM,n. 1. Achallenge of the property 
or ownership of a thing which is wrongfully 
withheld from the possession of the ¢laim- 
ant. Plowd, 3859. 


A claim is a right or title, actual or supposed, to 
a debt, privilege, or other thing in the possession 
of another; not the possession, but the means by 
or through which the claimant obtains the posses- 
sion or enjoyment. 2N. Y. 245, 254. 

A claim is, ina just, juridical sense, a demand 
of some matter as of right made by one person 
upon another, to do or to forbear to do some act or 
thing as a mutter of duty. A more limited, but at 


the same time an equally expressive, defluition | 
was given by Lord Dyer, that “a claim is a chal- | 


lenge by a man of the propriety or ownership of a 
thing, which he has not in possession, but which 
Is wrongfully detained from him.” 16 Pet. 615. 


“Claim” has generally been defined as a demand | 


for 1 thing, the ownership of which, or an inter- 
ast in which, is in the cluimant, but the possession 
of which is wrongfully withheld by another. But 
a broader meaning must be accorded to it. A de- 
mand for damages for criminal conversation with 
plaintiff's wife is a claim; bat it would be doing 
violence to language to say that such damages are 
property of plaintifi which defendant withholds. 
In common parlance the noun “claim” meaus an 
assertion, a pretension; and the verb is olten used 
(not quite correctly) as a synonym for “state,” 
“urge,” “insist,” or “assert.” Ina statute au- 
thorizing the courts to order a bill of particulars of 
the “claim” of either party, “claim” is co-extensive 
with “case,"and embraces all causes of action and 
all srounds of defense, the pleas of both parties, 
and pleas in confession and avoidance, no less 
than complaints and counter-clauims. It warrants 
the court in requiring a defendant who justifies 
aM. DIct.LAW—14 


209 


CLAMEA ADMITTENDA, ETC. 


ina libel suit to furnish particulars of the facts 
relied upon in justification. 6 Daly, 446. 

2. Under the mechanic’s lien law of Penn- 
sylvania, a demand put on record by a me- 
chanie or materjal-man against a building 
for work or material contributeu to its erec- 
tion is called a “claim.” 

3. Under the land laws of the United 
States, the tract of land taken up by a pre 
emptioner or other settler (and also his pos- 
session of the same) is called a “claim.” 


CLAIM IN BQUITY. In English prac- 
tics. In simple cases, where there was not 
any great conilict as to facts, and a discovery 
from a defendant was not songht, but a 
reference to chambers was nevertheless nec- 
essury before final decree, which would be 
as of course, all parties being before the 
court, the summary proceeding by claim was 
sometimes adopted, thus obviating the re- 
course to plenary and protracted pleadings. 
This summary practice was created by orders 
224 April, 1850, which came into operation 
on the 22d May following. See Smith, Ch. 
Pr. 664. By Consolid. Ord. 1860, viii. r. 4, 
claims were abolished. Wharton, 


CLAIM OF CONUSANCEH. In prac- 
tice. An intervention by a third person in 
a suit, claiming that he has rigltful jaris- 
diction of the cause which the plaintiff has 
commenced out of the claimant’s court. Now 
obsolete. 2 Wils. 409; 3 Bl. Comm. 29%, 


CLAIM OF LIBERTY. In English H 


practice. A suil or petition to the qucen, in 
the court of exchequer, to have liberties and 
franchises confirmed there by the altorney 
general. 

CLAIMANT. In admiralty practice. 
The name given to a person who lays claim 
to property seized on a libel iz rem, and who 
is authorized and admitted to defend the 
action. 


CLAM. 
erelly. 


In the civil law. Covertly; se- 


Clam delinquentes magis puniuntur 
quam palam. 8Coke,127. Those sinning 
secretly are punished more severely than 
those sinning openly. 


CLAM, VI, AUT PRECARIO. A tech- 
nical phrase of the Roman law, meaning by 
foree, stealth, or importunity. 


CLAMEA ADMITTENDA IN ITIN- 
ERE PER ATTORNATUM. Anancient 
writ by which the king commanded the jus- 
tices in eyre to admit the claim by atiorney 


iM 


CLAMOR 


21¢ 


CLAUSULA, ETQ 


of a person who was in the royal service, and | to attend on each of the accounts and in- 


eoulki not appear in person. Reg. Orig. 19. 


CLAMOR. In old English law. A 
elaim or complaint; an outcry; clamor. 

In the civillaw. A cluimant. A debt; 
anything claimed from another. A procla- 
mation; an accusation. Du Cange. 


CLARE CONSTAT. (It clearly ap- 
pears.) Inseotch law. The name of a pre- 
cept for giving seisin of Jands to an heir; so 
called from its initial words. Evak. Inst. 3, 
8, 71. 


CLAREMETHEN. In old Scotch law. 
The warranty of stolen catile or goods; the 
law regulating such warranty. Skene. 


CLARENDON, CONSTITUTIONS 
OF. The constitutions of Clarendon were 
certain statutes made in the reign of Henry 
If. of England, at a parliament held at Clar- 
endon, (A, D. 1164,) by which the king 
checked the power of the pope and his clergy, 
and greatly narrowed the exemption they 
claimed from secular jurisdiction. 4 BI. 
Comm. 422. 


CLARIFICATIO. Lat. In old Scotch 
law, A making clear; the purging or clear- 


ing (clenging) of an assise. Skene. 


CLASS. The order or rank according to 
which persons or things are arranged or as- 
sorted. Also a group of persons or things, 
taken collectively, having certain qualities 
in common, and constituting a unit for 
certain purposes; e. g., a class of legatees. 


CLASSIARIUS. A seaman or soldier 
serving at sea. 
CLASSICI. In the Roman law. Per- 


sons employed in servile duties on board of 
vessels. Cod. 11, 12. 


CLASSIFICATION. In the practice of 
the English chancery division, where there 
are several partics to an administration ac- 
tion, including those who have been served 
with notice of the decree or judgment, and 
it appears to the judge (or chief clerk) that 
any of them form a class haying the same 
interest, (e. g., residuary legatees,) he may 
require them to be represented by one so- 
licitor, in order to prevent the expense of 
each of them attending by separate solicitors. 
This is termed “classifying the interests of 
the piurties attending,” or, shortly, “classi- 
fying,” or “classification.” In practice the 
term is also appiied to Lhe directions given by 
the chief clerk as te @nich of the parties are 


quiries directed by the judgment. sweet. 
CLAUSE. A single paragraph or subdi- 
vision of a legal document, such as a con- 
tract, deed, will, constitution, or statute. 
Sometimes a sentence or part of a sentence. 


CLAUSE IRRITANT, In Scotch law. 
By this clause, in a deed or settlement, the 
acts or deeds of a tenant for life or other pro- 
prietor, contrary to the conditions of his 
tight, become nn\l and void; and by the 
“resolutive” clause such right becomes re- 
solved and extinguished. Beil. 


CLAUSE POTESTATIVE. In French 
law. The name given to theclause whereby 
one party to a contract reserves to himsclf 
the right to annul it. 


CLAUSE ROLLS. In English Law. 
Rolls which contain ail such matters of ree- 
ord as were committed to close writs; these 
rolls are preserved in the Tower. 


CLAUSULA. A clause; a sentence or 
part of a sentence in a written instrument or 
law. 


Ciausula generalis de residuo non ea 
complectitur quz non ejusdem sint gen- 
eris cum iis que speciatim dicta fue- 
rant. A general clause of remainder does 
not embrace those things which are not of the 
same kind with those which had been spe- 
cially mentioned. Lofft, Appendix, 419. 


Clausula gencralis non refertur ad 
expressa. 8 Coke, 154. <A general clause 
does not refer to things expressed. 


Clausula que abrogationem excludit 
ab initio non valet. A clause [in a law] 
which precludes its abrogation is void from 
the beginning. Bac. Max. 77. 


Clausula vel dispositio inutilis per 
presumptionem remotam, vel causam ex 
post facto non fulcitur. A useless clause 
or disposition [one which expresses no more 
than the law by intendment would have sup- 
plied] is not supported by a remote presump- 
tion, [or foreign intend ment of some purpose, 
in regard whereof it might be material, ] or 
by a cause arising afterwards, [which may 


induce an operation of those idle words,] 


Bac. Max. 82, regula 21. 


Clausule inconsusts semper inducunt 
suspicionem. Unusual clauses [in an in- 
strument] always inducesuspicion. 3 Coke. 
Sl. 


CLAUSUM 


CLAUSUM. Close, closed up, sealed. 
Inclosed, as a parcel of land. 


CLAUSUM FREGIT. IL. Lat. (He 
broke the close.) In pleading and practice. 
Technical words formerly used in certain 
actions of trespass, and still retained in the 
phrase guare clausum fregit, (gq. v.) 


CLAUSUM PASCHIA. In English 
law. The morrow of the ztas, or eight days 
of Easter; the end of Easter; the Sunday 
after Kaster-day. 2 Inst. 157. 


CLAUSURA. In old English law. An 
inclosure. Clausura heye, the inclosure of a 
hedge. Cowell. 


CLAVES CURIA. The Keys of the 
court. They were the officers of the Scotch 
courts, such as clerk, doomster, and serjeant. 
Burrill. 


CLAVES INSUL#. In Manx law. 
The keys of the Island of Man, or twelve 
persons to whom all ambiguous and weighty 
causes are referred, 


CLAVIA. Inold English law. <A club 
or mace; tenure per serjeantiam clavie, by 
the serjeanty of the club ormace. Cowell. 


CLAVIGERATUS. 
church. 


CLAWA. <A close, or small inclosure, 
Cowell, 


CLEAN HANDS. It is a rule of equity 
that a plaintiff must come with “clean hands,” 
i, e., he must be free from reproach in his 
conduct. But there is this limitation to the 
rule: that his conduct can only be excepted 
to in respect to the subject-matter of his 
claim; everything else is immaterial. 


A treasurer of a 


CLEAR. In a devise of money for the 
purchase of an annuity, this term means 
free from taxes, 2 Atk. 376. 

In the phrase “clear yearly value,” clear 
means free from all outgoings like a rent- 


charge, as losses by tenants and management, ) 


to which a rent charge is not liable. 2 Ves. 
439, - 

CLEAR DAYS. Ifa certain number of 
elear days be given for the doing of any act, 
the time is to be reckoned exclusively, as well 
of the first day as the last. 


CLEARANCH, In maritime law. A 
document in the nature of a certificate given 
by the collector of customs to an outward. 
bound vessel, to the effect that she has com- 


ali 


CLERICI, ETC, 


plied with the law, and is duly authorized to 
depart, 


CLEARING. The departure of a vessel 
from port, after complying with the customs 
and health laws and like local regulations. 

In mercantile law. A method of mak- 
ing exchanges and settling balances, adopted 
among banks and bankers. 


CLEARING-HOUSE. An _ institution 
organized by the banks of a city, where their 
messengers may meet daily, adjust balances 
of accounts, and receive and pay differences. 


CLEMENTINES. In canon law. Tie 
collection of decretals or constitutions of Pope 


Clement V., made by order of John XXII, 
his successor, who published it in 1517. 


CLEMENT’S INN. Aninn of chancery. 
See INNS OF CHANCERY. 

CLENGE. In old Scotch law. 
or acquit of a criminal charge. 
to cleanse or clean. 

CLEP AND CALL. In old Scotch 
practice, A solemn form of words prescribed 
by law, and used in criminal eases, as in pleas 
of wrong and unlaw. 

CLERGY. The whole body of clergymen 
or ininisters of religion. Also an abbrevia- 
tion for “benefit of clergy.” 


CLERGYABLE. In old English law. 
Admitting of clergy, or benefit of clergy. A 
clergyable felony was one of that class in 


To clear 
Literally, 


which clergy was allowable. 4 Bl. Comm. 
3¢1-373. 
CLERICAL. Pertaining to clergymen; 


or pe: taining to the office or labor of a clerk. 


CLERICAL ERROR. A mistake in 
writing or copying; the mistake of a clerk or 
writer. 1 Ld. Raym. 183. 

CLERICAL TONSURE. The having 
the head shaven, which was formerly peciil- 
iar to clerks, or persons in orders, and which 
the coits worn by serjeants at law are sup- 
posed to have been intrcduced to conceal. 1 
Bl. Comm. 24, note ¢; 4 Bl. Comm. 367. 


CLERICALE PRIVILEGIUM. In 
old English law. The clerical privilege; the 
privilege or benefit of clergy. 

CLEHRICI DE CANCELLARIA. 
Clerks of the chancery. 

Co. 
Ciergymen should not be placed in 
See Loft, 


Clerici non ponentur in oMficiis. 
Litt. 96. 
offices; ¢ @&, in secular ollices. 


508. 


i 


CLERICI PRA NOTARIL 212 CLERK OF THE MARKET 
CLERICI PRANOTARII. The six CLERK. In ecclesiaticallaw. <A per- 


elerksinchancery. 2 Reeve, Eng. Law, 251. 


CLERICO ADMITTENDO. Ses AD- 
MITTENDO CLERICO. : 


CLERICO CAPTO PER STATUTUM 
MERCATORUM. A writ for the deliv- 
ery of a clerk out of prison, who was taken 
and incarcerated upon the breach of a stat- 
ute merchant. Reg. Orig. 147. 


CLERICO CONVICTO COMMISSO 
GAOLA IN DEFECTU CRDINARII 
DELIBERANDO. An ancient writ, that 
lay for the delivery to his ordinary of a clerk 
convicted of felony, where the ordinary did 
not challenge him according to the privilege 
of clerks. Reg. Orig. 69. 


CLERICO INFRA SACROS ORDI- 
NES CONSTITUTO, NON ELIGEN- 
DO IN OFFICIUM, A writ directed to 
those who had thrust a bailiwick or other 
office upon one in holy orders, charging them 
to release him, Reg. Orig. 143. 


CLERICUS. In Roman law. A min- 
ister of religion in the Christian church; an 
ecclesiastic or priest. Cod. 1, 3; Nov 3, 
123,137. A general term, including bishops, 
priests, deacons, and others of inferior order, 
Brissonius. 

In old English law. A clerk or priest; 
a person in holy orders; a secular priest; a 
clerk of a court. 

An officer of the royal household, having 
charge of the receipt and payment of moneys, 
ete. Fleta enumerates several of them, with 
their appropriate duties; as clericus coguinw, 
clerk of the kitchen; clericus punetr’ et 
butelr’, clerk of the pantry and buttery. 
Tib. 2; ce. 18, 19. 


Clericus et agricola et mereator, tem- 
pore belli, ut oret, colat, et commutet, 
pace fruuntur. 2 Inst. 58. Clergymen, 
husbandmen, and merehants, in order that 
they may preach, cultivate, and trade, enjoy 
peace in lime of war. 


CLERICUS MERCATY. In old En- 
glish law. Clerk of the market. 2 Inst. 543, 


Clericus non connumeretur in dua. 
busecclesiis. 1 Rolle. A clergyman should 
not be appointed to two churcises. 


CLERICUS PAROCHIALIS, 
Englishlaw. <A parish clerk. 


CLERIGOS. In Spanish law. 
mer chosen for the service of God. 
New Recop. b. I, tit. 5, ch. 4, 


In old 


Clergy; 
W hite, 


ooo! 


son in holy orders; a clergyman; an individ- 
ual attached to the ecclesiastical state, and 
who has the clerical tonsure, See 4 BL, 
Comm. 366, 367. 

In practice. A person employed ina 
public office, or as an officer of a court, 
whose duty is to keep records or accounts. 

In commercial law. <A person employed 
by a merchant, or in a mereantile establish- 
ment, as a salesman, book-keeper, accvunt 
ant, amanuensis, etc., invested with more or 
less auLbLority in the adminisiration of some 
branch or department of the business, while 
the principal himself superintends the 
whole. 


CLERK OF ARRAIGNS. In English 
law. An assistant to the clerk of assise. 
His duties are in the crown court on circuit, 


CLERK OF ASSISE. In English law. 
Officers who officiate as associates on tha 
circuits. They record all judicial proceeds 
ings done by the judges on the circuit. 


CLERK OF COURT. An officer of a 
court of justice who has charge of the cler- 
ical part of its business, who kweps its records 
and seal, issues process, enters Judgments 
and orders, gives certified copies from the 
records, etc. 


CLERK OF ENROLLMENTS. In 
English law. The former chief oilicer of Lhe 
English enrollment oftice, (g. 0.) He now 
forms part of the staff of the central ollice. 


CLERK OF THE CROWN 
CHANCERY. See Crown 
CUANCERY. 


CLERK OF THE HOUSE OF COM- 
MONS. Animportant officer of the English 
house of commons. He is appointed by the 
crown as under-clerk of the parliaments to 
attend upon the commons. He makes a 
declaration, on entering upon lis office, to 
make true entries, remembrances, and jour- | 
nals of the things done and passed in the 
house. He signs all orders of the house, in- 
dorses the bills sent or returned to the lords, 
and reads whatever is required to be read in 
the house, He has the custody of all records 
and other documents. May, Parl. Pr, 236. 


IN 
OFFIOGE IN 


CLERK OF THE MARKET. The 
overseer or superintendent of a public mar. 
ket. In old English law, he was a quasi 
judicial officer, having power to settle con- 
troversies arising in the market between 


‘CLERK OF PARLIAMENTS 


sons dealing there. Called “eclericus mer- 
» 481. Comm. 275. 


CLERK OF THE PARLIAMENTS. 

One of the chief officers of the house of 

 jords. He is appointed by the crown, by 
letters patent.. On entering office he makes 
# declaration to make true entries and 
records of the things done and passed in the 
parliaments, and to keep secret all such 
matters as shall be treated therein. May, 
Parl. Pr. 208. 


CLERK OF THE PEACE. In English 
aw. An officer whose duties are to ofliciate 
it sessions of tle peace, to prepare indict- 
ments, and to record the proceedings of the 
justices, and to perform a number of special 
duties in connection with the affairs of the 
county. 


CLERK OF THE PETTY BAG. 
Petry Baa. 


CLERK OF THE PRIVY SHAT. 
There ave four of these officers, who attend 
the lord privy seal, or, in the absence of the 
lord privy seal, the principal secretary of 
state. Their duty is to write and make out 
all things that are sent by warrant from the 
signet to the privy seal, and which are to be 
passed to the great seal; and also to make 
out privy seals (as they are termed) uponany 
special occasion of his majesty’s affairs, as 
for the loan of money and such like purposes. 
Cowell. 


CLERK OF THE SIGNET. An offl- 
cer, in England, whose dufy it is touttend on 
the king’s principal secretary, who always 
has the custody of the privy signet, as well 
for the purpose of sealing his majesty’s pri- 
vate letters, as also granis which pass his 
majesty’s hand by bill signed; there are four 
of these officers. Cowell. 


See 


CLERKS OF INDICTMENTS. Off- 
cers attached to the central criminal court in 
England, ani) to each circuit. They prepare 
and settle indictments against offenders, and 
assist the clerk of arraigns. 


CLERKS OF RECORDS AND WRITS. 
Officers formerly attached to the English 
court of chaucery, whose duties consisted prin- 
eipally in sealing bills of complaint and writs 
of execution, filing aflidavits, keeping a record 
of suits, and certifying office copies of plead- 
ings and affidavits. They were three in num- 
ver, and the business was distributed among 
them according to the letters of the alphabet. 
By the judicature acts, 1878, 1875, they were 


2138 


eee, 


CLOSE 


transferred to the chancery division of the 
high court. Now, by the judicature (officers’) 
act, 1879, they have been transferred to the 
central office of the supreme court, under the 
title of “Masters of the Supreme Court,” and 
the office of clerk of records and writs has 
been abolished. Sweet. 


CLERKS OF SEATS, in the principal 
registry of the probate division of the English 
high court, discharge the duty of preparing 
and passing the grants of probate and letters 
of administration, under the supervision of 
the registrars. There are six seats, the busi- 
ness of which Js regulated by an alphabetical 
arrangement, and cach seat has four clerks. 
They have to take bonds from a:iiministrators, 
and to receive caveats against a grant being 
made in a case where a will is contested. 
They also draw the “acts,” @. e., a short sum- 
mary of each grant made, containing the 
name of the leceased, amount of assets, and 
other particulars. Sweet. 


CLERKSHIP. The period which must 
be spent by a law-student in the office of a 
practising attorney before admission to the 
bar. 1 Tidd, Pr. 61, et seq. 

In old English practice. The art of 
drawing pleadings and entering them on rec- 
ord in Latin, in the ancient court hand; oth- 
erwise called “skill of pleading in actions at 
the common Jaw.” 


CLIENS. Lat. In the Roman law. A 
client or dependent. One who depended up- 
on another as his patron or protector, adviser 
or defender, in suits at law and other diffl- 
culties; and was bound, in return, to pay him 
all respect and honor, and to serve him with 
his life and fortune inany extremity. Dionys. 
ii, 10; Adams, Rom. Ant. 83. 

CLIENT. A person who employs or re- 
tains an attorney, or counsellor, to appear for 
him in courts, advise, assist, and defend him 
in legal proceedings, and to act for him in 
any legal business. 

CLIENTELA. In old English law. 
Clientship, the state of a client; and, correla- 
tively, protection, patronage, guardianship. 

CLIFFORD'’S INN. <An inn cf chan- 
cery. See INNS or CHANCERY. 


CLITO. In Saxon law. The son of a 
king or emperor. The next heir to the 
throne; the Saxon adeling. Spelman. 


CLOERE. A gaol; a prison ordungeon. 


CLOSE, adj. 
up. 


In practice. Close or sealed 
A term applied to writs and letters, as 


CLOSE 


214 


COAL NOTE 


distinguished from those that are open or | shown by extrinsic proof to be invalid or in- 


patent. 


CLOSE, #. A portion of land, as a field, 
inclosed, ag by a hedge, fence, or other visible 
inclosure. 38 Bl. Comm. 209. The interest 
of a person in any particular piece of ground, 
whether actually inclosed@or not. 7 East, 
207. 

The noun “close,” in its lagal sense, imports a 
portion of land inciosed, but not necessarily in- 
closed by actual or visible barriers, The invisible, 
ideal boundary, founded on limit of title, which 
surrounds every man’s land, constitutes it his 
close, irrespective of walls, fences, ditches, or the 
like, 

In practice. The word means termina- 
tion; winding up. ‘Thus the close of the 
pleadings is where the pleadings are finished, 
#. e., When issue has been joined. 


CLOSE COPIES. Copies of legal docu- 
ments which might be written closely or 
loosely at pleasure; as distinguished from 
office copics, which were to contain only a 
prescribed number of words on each sheet. 


CLOSH-HAULED. In admiralty law, 
this nautical term means the arrangement or 
trim of a vessel’s sails when she endeavors to 
muke a progress in the nearest direction pos- 


sible towards that point of the compass from | 


which the wind blows. Guta vessel may be 
considered as close-hauled, although she is 
not quite so near to the wind as she could 
possibly lie. 6 El. & BI.771. 


CLOSE ROLLS. Rolls containing the 
record of the close writs (diter@ elause) and 
grants of the king, kept with the public rec. 
ordg. 2 Bl. Comm. 346. 


CLOSE WRITS. In English law. Cer- 
tain letters of the king, sealed with his great 
seal, and directed to particular persons and for 
particular purposes, which, not being proper 
for public inspection, are closed up and sealed 
on the outside, and are thence called “writs 
close.” 2 bl. Comm. 346; Sewell, Sheriffs, 
872, 


Writs directed to the sheriff, instead of to | 


the lord. 8 Reeve, Eng. Law, 45. 


CLOTURE. The procedure in delibera- 
tive assemblies whereby debate is closed. In- 
troduced in the English parliament in the 
session of 1882. 


CLOUD ON TITLE. An outstanding 
claim or incumbrance which, if valid, would 
affect or impair the title of the owner of a 
particular eslate, and which apparently and 
on its fuce has that effect, buf which can be 


applicable to the estate in question. <A cor 
veyance, mortgage, judgment, tax-levy, ete., 
may all, in proper cases, constitute a cloud 
on title. 


CLOUGH. Avalley. Alsoan allowance 
for the turn of the acale, on buying goods 
wholesale by weight. 


CLUB. A voluntary, unincorporated as- 
sociation of persons fer purposes of a social, 
literary, or political nature, or the like. A 
ciul is nota partnership. 2 Mees. & W. 172. 


The word “club” has no very definite meaning. 
Clubs are formed for all sorts of purposes, and 
there is no uniformity in their constitutions and 
rules. It is well known that clubs exist which 
limit the number of the members and select them 
with great care, which own considerable property in 
common, and in which the furnishing of food and 
drink to the members for money is but one of many 
conveniences which the members enjoy. 137 
Maas. 567. 

CLUB-LAW. Rule of violence; regula- 
tion by force; the law of arms. 


CLYPEBUS, or CLIPEUS. In old En 
glish law. <A shield; metaphorically one of 
a noble family. Clypei prostraii, noble 
families extinct. Mat. Paris, 463. 


co. A prefix to words, meaning “ with” 
or “in eonjunction” or “joint;” « g., co- 
trustees, co-executors. 


COACH. Uoach isa generic term. It is 
a kind of carriage, and is distinguished from 
otber vehicles, chiefly, as being a covered box, 
hung on leathers, with four wheels. 9 Ohio, 
12. 


COADJUTOR. An assistant, helper, or 
ally; particularly a@ person appointed to as- 
sist a bishop who from age or infirmity is 
unable to perform his duty. Also an over- 
seer, (coadjutor of an executor, ) and one who 
disseises a person of land not to his own use, 
but to that of another. 


CO-ADMINISTRATOR. One who isa 
joint administrator with one or more others. 


COADUNATIO. A uniting or combin- 
ing together of persons; a conspiracy. $% 
Coke, 56. 


COAL NOTE. A species of promissory 
note, formerly in use in the port of London, 
eontaining the phrase “value received in 
coals.” By the statute 3 Geo. IL, c. 26, §§ 7, 
8, these were to be protected and noted as 
inland bills of exchange. Butthis was re- 
pealed by the statute 47 Geo. IIL. sess. 2, c. 
68, § 23. 


COALITION 215 CODE DE COMMERCE 


COALITION. InFrenchlaw. Anun- |] when clad in armor from one another. 
lawful agreement among several] persons not | Wharton. 
‘i ete ied eters lave onan COCKBILL. To place the yards of a 
Niatione sities ote: a oneviracy.: | SHiput an angle with the deck, Pub. St. 
inations, strikes, ete.; a conspiracy. Mass. 1882, p. 1288, 


_COCKET. In Englishlaw. A seal belong- 
ing to the custom-house, or rather a scroll of 
parchment, sealed and delivered by the offi- 
cers of the custom-house to merchants, as a 
warrant that their merchandises are entered; 
likewise a sort of measure, Fleta, lib. 2, ¢. 
ix, 


COCKPIT. A name which used to be 
given to the judicial committee of the privy 
council, the council-room being built on the 
old cockpit of Whitehall Place. 


COCKSETUS. A boatman; acockswain. 
Cowell. 


CO-ASSIGNEE. One of two or more 
assignees of Lhe same subject-matter. 


COAST. The edge or margin of a coun- 
try bounding on the sea. It is held that the 
term includes small islands and reefs natu- 
rally connected with the adjacent land, and 
rising above the surface of the water, al- 
though their composition may not be sull- 
ciently firm and stable to admit of their be- 
ing inhabited or fortified; but not shoals 
which are perpetually covered by the water. 
§ C. Rob. Adm. 385e, 

This word is particularly appropriate to 
the edge of the sea, while “shore” may be 
used of the margins of inland waters. CODE. A collection or compendium of 

laws. A complete system of positive law, 

COAST-GUARD. In English law. A | scientifieally arranged, and promulgated by 
body of officers and men raised and equipped | legislative authority. 
by the commissioners of the admiralty for! ‘The collection of laws and constitutions 
the defense of the coasts of the realm, and | made by order of the Emperor Justinian is 
for the more ready manning of the navy in distinguished by the appellation of “The 


ease of war or sudden emergency, as well as | Cole,” by way of eminence. See Copz or 
for the protection of the revenue against | Jostinian. 


smugslers, Mozley & Whitley. 


A body of law established by the legislative au- 


Fe thority, and intended to set forth, in generalized 
COASTING TRADE. In maritime law. | and systematic form, the principles of the entira 


Commerce and navigation between different | law, whether written or unwritten, positive or cus- 
places along the coast of the United States, | tomary, derived from enactment or from prece- 
as distinguished from commerce with ports | 4%% Abbott. 
in foreign countries. A code is to ba distinguished from a digest, 
Commercial intercourse carried on between | The subject-matter of the latter is usually re- 
different districts in different states, different | ported decisions of thecourts, But there are 
districts in the same state, or different places | #lso digests of statutes. These consist of an or- 
in the same district, on the sea-coust or on a | derly collection and classification of the exist- 
nayigableriver. 3Cow.713; 1 Newb. Adm. | ing statutes of a state or nation, while a code 
241. is promulgated as one new law covering the 


COASTWISE. Vessels “plying coast- whole field of jurisprudence. 
wise” are those which are engaged in the CODE CIVIL. Thecode which embodies 
domestic trade, or plying between port and | the civillaw of France. Framed in the first 
port in the United States, as contradistin- | instance by a commission of jurists appointed 
guished from those engaged in the foreign | in 1800. This code, after having passed both 
trate, or plying between a portof the United | the tribunate and the legislative body, was 
States and a port of a foreign country. 10 , promulgated in 1804 as the “Code Civil des 
Cal. 504. Frangais.” When Napoleon became em- 


' eror, the name was changed to that of “Code 
at See OR pintalan? “eneteaey tt Napoleon,” by which it te still often desig- 
eed “Re SO oe oat nated, though it is now officially styled by 
here they wer ed. Originally aan ; ce wil? 
they were painted on the shields of the Chris- a 
tian knights who went to the Holy Land CODE DE COMMERCE. A French 
during the erusades, for the purpose of iden- | code, enacted in 1807, as a supplement to tha 
tifying them, some such eontrivance being | Code Napoleon, regulating commercial trans- 
necessary in order to distinguish knights | actions, the laws of business, bankrupteies, 


7 J 
CODE DE PROCEDURE CIVIL 


and the jurisdiction and procedure of the 
courts dealing with these subjects. 


CODE DEPROCEDURECIVIL. That 
part of the Code Napoleon which regulates 
the system of courts, their organization, civil 
procedure, special and extravrdinary rem- 
edies, and the execution of judgments. 


CODE D INSTRUCTION CRIMI- | 
NELLE. A French code, enacted in 1808, 
regulating criminal procedure. 


CODE NAPOLEON. See Cope Crvi.. 


CODE OF JUSTINIAN. The Code of 
Justinian (Codex Justinianeus) was a col- 
lection of imperial constitutions, compiled, by 
order of that emperor, by a commission of | 
ten jurists, including Tribonian, and pro- 
mulgated A. D. 529, It comprised twelve 
books, and was the first of the four com- 
pilations of law which make up the Corpus 
Juris Civilis. : 


This name is often met in a connection in- 
dicating that the entire Corpus Juris Civilis 
is intended, or, sometimes, the Digest; but 
its use should be confined to the Codex. 


CODE PENAL. The penal or criminal 
eole of France, enacted in 1810. 


CODEX. Lat. A code or collection of 
laws; particularly the Code of Justinian. 
Also a roll or volume, and a book written on 
paper or parchment, 


CODEX GREGORIANUS. A collec- 
tion of imperial constitutions made by Gre- 
gorius, 8 Roman jurist of the fifth century, 
about the middle of the century. It contained 
the constitutions from Hadrian down to Con- | 
stantine. Mackeld. Kom. Law, § 63. | 


CODEX HERMOGENIANUS. A col- 
lection of imperial constitutions made by 
Hermogenes, a jurist of the fifth century. It 
was nothing more than a supplement to the 
Codex Gregorianus, (supra,) containing the 
constitutions of Diocletian and Maxiuilian. 
Mackeld. Rom. Law, § 63. 


CODEX JUSTINIANEUS. A collec- 
tion of imperial constitutions, made by acom- 
mission of ten persons appointed by Justin- 
fan, A. D. 528. 


CODEX REPETITA PRALECTIO- 
WIS. The new code of Justinian; or the 
new edition of the first or old code, promul- 
galed A, D. 584, being the one now extant. 
Mackeld. Rom. Law,$ 73. Tayl. Civil Law, 
22, 


216 


COERCION 


CODEX THEODOSIANUS. A code 
compiled by the emperor Theodosius the 
younger, A. D. 438, being a methodical eol- 
lection, in sixteen books, of all the imperial 
constitutions then in force. It was the ouly 
body of civil law publicly received as authen- 
tic in the western part of Europe till the 
twelfth century, the use and authority of tha 
Code of Justinian being during that interval 
confined to the East. 1 Bl. Comm. 81. 


CODEX VETUS. The old code. The 
first edition of the Code of Jnstinian; now 
lost. Mackeld. Rom, Law, § 70. 


CODICIL. A testamentary disposition 
subsequent to a will, and by which the will 
is altered, explained, added to, subtracted 


| from, or confirmed by way of republication, 


but in no case totally revoked, 
Lect. 284. 

A codicil is an addition or supplement to 
a will, either to add to, take from, or alter 
the provisions of the will. It must be exe 
cuted with the same formality as a will, and, 
when admitted to probate, forms a part of 
the will, Code Ga. 1882, § 2404. 


CODICILLUS. In the Roman law. A 
codicil; an informal and inferior kind of will, 
in use among the iiomans, 

CODIFICATION. The process of col- 
lecting and arranging the laws ol a country 
or state into a code, z. ¢., into a complete 
system of positive law, scientilically ordered, 
and prowulgated by legislative authority, 


COEMPTIO. Mutual purchase. One of 
the modes in which marriage was contracted 
among the Romans. The man and the woman 
delivered to each other a small piece of mon- 
ey. ‘The man asked the woman whether she 
would become to him a mat7familias, (mis- 
tress of his family,) to which she replied that 
she would. in her turn she asked the man 
whether he would become to her a paterfa- 
milias, (master of a family.) On his reply- 
ing in the affirmative, she delivered hor piece 
of money and herself into his hands, and so 
became his wife. Adams, Rom. Ant. 501. 


2 Woodd. 


CO-EMPTION. The act of purchasing 
the whole quantity of any commodity. Whar- 
ton. 


COERCION. Compulsion; force; duress. 
It may be either actual, (direct or positive, ) 
where physical force is put upon a man te 
compel him to do an act against his will, or 
impited, (icgal or constructive,) where the 
relutiou of the parties is auch that one 33 un- 


| 
| 


CO-EXECUTOR 


‘der subjection to the other, and is thereby 


217 


COGNIZANCE 


COGNITIONES. Ensigns and arms, or 


constrained to do what his free will would | a military coat painted with arms. Mat. Par. 


refuse. 


CO-EXECUTOR. One who is a joint. 


executor with one or more others. 


COFFEE-HOUSEH. <A honse of enter- 
tainment where guests are supplied with cof- 
fea and other refreshinents, and sometimes 
with lodging. Century Dict. A cottee-house 
is notaninn. 4 Camp. 76. 


COFFERER OF THE QUEEN’S 
HOUSEHOLD. In English law. A prin- 
cipal officer of the royal establishment, next 
uniler the controller, who, in the counting- 
house and elsewhere, had a special charge and 
oversight of the olher eflicers, whose wages 
he paid. 


Cogitationis poonam nemo patitur. No, 


one is punished for his thoughts. Dig. 48, 
ao) 13. 
COGNATES. (Lat.cognati.) Relations 


by the mother’s side, or by females, Mac- 
keld. Rom. Law, § 144. A common term 
in Scoteh law. Ersk. Inst. 1, 7, 4. 


COGNATI. Lat. In thecivillaw. Cog- 


nates relations by the mother’s side. 2 Bl. 
Comm. 235. Relations in the line of the 
mother, Hale, Com. Law, c. xi. Relations 


by or through females. 


COGNATEO. Lat. In tho civil law. 
Cognation. Reiationship, or kindred gener- 
ally, Dig. 88,10, 4, 2; Inst. 3, 6, pr. 

Relationship through females, as distin- 
guished from egnatio, or relationship 
through males. Agnuctiv a patre sit, cogna- 
tioa matre. Inst. 3, 5,4. See AGNATIO, 

In canon law. Consanguinity, as distin- 
guished from aflinity. 4 Reeve, Eng. Law, 
56-58. 

Consangiinity, as including aflinity. Id. 


COGNATION. Inthe civillaw. Signi- 
nifies generally the kindred which exists be- 
tween two persons who are united by ties of 
blood or family, or both. 


COGNATUS. Lat. Inthecivil law. A 
Telation by the mother’s side; a cognate. 
A relation, or kinsman, generally. 


COGNITIO. In old English law. The 
acknowledgment of a fine; the certificate of 
such acknowledgment. 

in the Roman law. The judicial exam- 
ination or hearing of a cause. 


ee 


1250. 
COGNITIONIBUS MITTENDIS. In 
English law. <A writtoa justice of the com- 


mon pleas, or other, who has power to take 
a fine, whe, having taken the fine, deters to 


certify it, commanding him to certify it. 


Now abolished. Reg. Orig, 68. 


COGNITIONIS CAUSA. In Scotch 
practice, A name given toa judgment or de- 
cree pronounced by a court, ascertaining the 
amount of a debt against the estate of a de- 
ceased landed proprietor, on cause shown, or 
after a due investigation. Bell. 


COGNITOR, Inthe Romanlaw. An ad- 
vocate or defender in a private cause; one 
who defended the cause of a person who 
was present. Calvin, Lex, Jurid. 


COGNIGANCE. In old practies. That 
part of a fine in which the defendant acknozl- 
edged that the land in question was the right 
of the complainant. From this the fine it- 
self derived its name, as being sux cognizance 
de droit, etc., and the parties their titles of 
cognizor and coynizee. 

In modern practice. Judicial notice or 
knowledge; the judicial hearing of a cause; 
jurisdiction, or right to try and determine 
causes; acknowledgment; confession; recog- 
nition. 

Of pleas. Jurisdiction of causes. A 
privilege granted by the king to a city or 
town to hold pleas within the same, 

Claim of cognizance (or of conusance) 
is an intervention by a third person, de- 
manding jndicature in the cause against the 
plaintiff, who has chosen to commencv his 
action out of claimant's court. 2 Wils. 409; 
2 Bl. Comm. 350, note. 

In pleading. A species of answer in the 
action of replevin, by which the defendant 
acknowledges the taking of the goods which 
are the subject-matter of the action, and also 
that he has no title tothem, but justifies the 
taking on the ground that it was done by 
the command of one who was entitled to the 
property. 

In the process of levying a fine, it is an 
acknowledgment by the deforciant that the 
Tands in question belong to the complainant, 

In the language of American jurispru- 
dence, this word is used chiefly in the sense 
of jurisdiction, or the exercise of jurisdie- 
tion; the judicial examination of a matter, 
or power and authority to make it. 


K 


Ni 


COGNIZANCE 


Judicial cognizance is judicial notice, or 
knowledye upon which a judge is bound to 
act without having it proved in evidence, 


COGNIZEH. The party to whoma fine 
was levied, 2 Bl. Comm. 351. 


COGNIZOR. In old conveyancing. The 
party levying a fine. 2 Bl. Comm. 350, 351. 


COGNOMEN. In Romanlaw. A 
man’s family name. The first name (pra- 
nomen) was the proper name of the indi- 
vidual; the second (momen) indicated the 
gens or tribe to which he belonged; while the 
third (ceynomen) denoted his family or 
house. 

in English law. A surname. A name 
added to the nomen proper, or name of the 
individual; a name descriptive of the fam- 
ily. 

Cognomen majorum est ex sanguine 
tractum, hoc intrinsecum est; agnomen 
extrinsecum ab eventu. 6 Coke, 65. Tho 
cognomen is derived from the blood of an- 
cestors, und is intrinsic; an agnomen arises 
from an event, and is extrinsic, 


COGNOVIT ACTIONEM. (He has 
confessed the action.) A defendant's writ- 
ten confession of an action brought against 
him, to which he has no available defense. 
It is usually upon condition that he shall be 
allowed a certain time for the payment of 
the debt or damages, and costs. It is sup- 
posed to be given in court, and it impliedly 
authorizes the plaintiff’s attorney to sign 
judgment and issue execution. 


COHABIT. To live together as husband 
and wife; to live together at bed and board. 
Burrows, Sett. Cas. 26. 

To live together, as !n the same house. 
“That his sisters, the Lady Turner and 
Arabella Clerk, might cohabit in the capital 
house.” 2 Vern. $23. 


COHABITATION. Living together; liv- 
ing together as husband and wife. 

Cohabitation means having the same habitation, 
not a sojourn, a habit of visiting or remaining 
for a time; there must be something more than 
mere meretricious intercourse. 75 Pa. St. 207. 


Cohgeredes una persona censentur, 
propter unitatem juris quod habent. Co. 
Litt. 168. Co-heirs are deemed as one per- 
son, on account of the unity of right which 
they possess. 


COH ARES. In old English law. 
heir, or joint heir. 


A co- 


218 


COLD WATER ORDEAL 


CO-HEIR. One of several to whom an 
inheritance descends. 


CO-HEIRESS. A joint heiress, <A wo- 
man who has an equal share of an inherit- 
ance with another woman. 


COHUAGIUM. A tribute made by those 
who meet promiscuously in a market or fain 
Du Cange. 


COIF. A title given to serjeants at law, 
who are called “serjeants of the coif,” from 
the coif they wear on their heads. The use 
of this coif at frst was to cover the clerical 
tonsure, many of the practising serjeants be 
ing clergymen who had abandoned their pro- 
fession. It was a thin linen cover, gathered 
together in the form of a skull or helmet; 
the material being afterwards changed into 
white silk, and the form eventually into the 
black patch at the top of the forensic wig, 
which is now the distinguishing mark of the 
degree of gerjeant at law. (Cowell; Foss, 
Judg.; 3 Steph. Comm. 272, note.) Brown, 


COIN, te. To fashion pieces of metal 
into a prescribed shape, weight, and degree 
of fineness, and stamp them with prescribed 
devices, by authority of government, in or- 
der that they muy circulate as money. See 2 
Duy. 29; 22 Ind, 806; 25 How. Pr. 105. 


COIN, . Pieces of gold, silver, or other 
metal, fashioned into a prescribed shape, 
weight, und degree of fineness, and stamped, 
by authority of government, with certain 
marks and devices, and put into circulation 
as money at a fixed value. 

Strictly speaking, coin differs from money, as 
the species differs from the genus. Money is any 
matter, whether metal, paper, beads, shells, eto, 
which has currency as a medium in commerce. 
Coin is a particular species, always mado of metal, 
and struck according to a certain process called 
“coinage.” Wharton. 


COINAGE. The process or the function 
of coining metallic money; also the great 
mass of metallic money in circulation. 


COJUDICES. Lat. In old English law. 
Associate judges having equality of power 
with others. 


COLD WATER ORDEAL. The trial 
which was anciently used for the common 
sort of people, who, having a cord tied about 
them under their arms, were cast into a river; 


| if they sank to the bottom until they were 


drawn up, which was in a very short time, 
then were they held guiltless; but such as 
did remain upon the water were held cul- 


COLIBERTUS 2 


19 COLLATERAL WARRANTY 


pible, being, as they said, of the water re- | cree is an attempt made to destroy or evade 


jected and kept up. Wharton. 


COLIBERTUS. In feudal law. One 
who, holding in free soecage, was obliged to 
do certain services for the lord. A middle 
class of tenants between servile and free, 
who held their freedom of tenure on con- 
dition of performing certain services. Said 
to be the same as the conditionales. Cowell. 


COLLATERAL. By the side; at the 
side; attached upon the side. Not lineal, 
but upon a parallel or diverging line. Ad- 


ditional or auxiliary; supplementary; co-op- | 


erating. 


COLLATERAL ACT. In old practice. 
The name “collateral act” was given to any 
act (except the payment of money) for the 
performance of which a bond, recognizance, 
elc., was given as securiby. 


COLLATHRAL ANCESTORS A 
phrase sometimes used to designate uncles 
and aunts, and other collateral antecessors, 
who are not strictly ancestors. 3 Barb. Ch. 
438, 446. 


COLLATERAL ASSURANCH, That 
which is made over and above the principal 
assurance or deed itself. 


COLLATERAL CONSANGUINITY. 
That relationship which subsists between per- 
sons who have the same ancestors but not the 
same descendants, who do not descend one 
from the other. 2 Bl. Comm. 203. 

Lineal consanguinity being usually represented 
by a perpendicular or right line, (Linea recta,) in 
which the kindred are ranked relatively, one above 
or below the other, as father, son, grandson, col- 
interal consanguinity is properly denoted by one 
or more transverse lines, crossing this, or proceed- 
ing obliquely froma it on the stde (a latere) upon 
which the kindred are ranked in their order. 
Burrill. 


COLLATERAL DESCENT. Descent in 
a collateral or oblique line, ¢. e., up through 
the common ancestor and then down from 
him; descent to collaterals, 


COLLATERAL ESTOPPEL. The col- 
lateral determination of a question by a court 
having general jurisdiction of the subject. 
See 26 Vt. 209. 


COLLATERAL FACTS. Such as are 
outside the controversy, or are not directly 
connected with the principal matter or issue 
in dispute. 


COLLATERAL IMPEACHMENT. A 
sollateral impeachment of a judgment or de- 


a nnn nT enn nan ——— SSS 


its effect as an estoppel. by reopening the 
merits of the canse or by showing reasons 
why the judgment should not have been ren- 
dered or should not have a conelusive effect, 
in a collateral proceeding, %. e., in any action 
other than that in which the judgment was 
rendered; for, if this be done upon appeal, 
error, or certiorari, the impeachment is dé- 
rect. 


COLLATERAL INHERITANCE 
TAX. A tax levied upon Lhe collateral dev- 
olution of property by will or under the in- 
testate law. 


COLLATERAL ISSUE. In practice. D 
An issue taken upon matter asire from the 
intrinsic merits of the action, as upon a plea 
in abatement; or aside from the direct and 
regular order of the pleadings, as on a de- E 
murrer. 2 Archb. Pr. K. B. 1, 6, bk. 2, pts. 
bz 

The Lerm “collateral” is also applied in Eng- 
land toan issue raised upon a plea ot diver- 
sity of person, pleaded bya criminal who has F 
been tried and convicted, in bar of execution, 
viz., that he is not the same person who was 
attainted, and the like. 4 Bl. Comm. 346. 


COLLATERAL KINSMEN. Those G 
who descend from one and the same common 
ancestor, but not from one another, 


COLLATERAL LIMITATION. One 
which gives an interest in an estate for a H 
specified period, but makes the right of en- 
joymeut to depend on some collateral event, 
as an estate to A. till B. shall go to Rome. 
Park, Dower, 163; 4 Kent, Comm. 128. | 


COLLATERAL SECURITY. A secu- 
rity given in addition to the direet security, 
and subordinate to it, intended to guaranty 
its validity or convertibility or ingure its per- J 
formance; so that, if the direct security fails, 
the creditor may fall back upon the collateral 
security. 

Collateral security, in bank phraseology, 
means some security additional to the person. K 
al obligation of the borrower. 2 Abb. (U. 
8.) 423. 


COLLATERAL UNDERTAKING. 
“Collateral” and “original” have become the L 
technical terms whereby to distinguish prom- 
ises that are within, and such as are not 
within, the statute of frauds. 7 Har. & J. 
391, 


COLLATERAL WARRANTY, in oa A 
conveyancing, was where the heir’s title te 


COLLATERALIS ET SOCII 


the land neither was nor could have been de- 
rived frum the warranting ancestor. Thus 
where a younger brother released to his 
father’s disseisor, with warranty, this was 
collateral to the elder brother. The whole 
doctrine of collateral warranty seems repug- 
nant to plain and unsophisticated reason and 
justice; and even ils technical grounds areso 
obscure that the ablest legal writers are not 
agreed upon the subject. Wharton, 


COLLATERATIS ET SOCII. 
cient title of masters in chancery. 


COLLATIO BONORUM. A _ joining 
together or contribution of goods into a com- 
monfund. ‘This occurs where a portion of 
money, advanced by the father to a son or 
daughter, is brought into Aotehpot, in order 
to have an equal distributory share of his per- 
sonal estate at his death. See CoLLATION. 


COLLATIO SIGNORUM. In old En- 
glish law. A comparison of marks or seals. 
A mode of testing the genuineness of a seal, 
by comparing it with another known to be 
genuine. Adams. See Bract. fol. 3d89b. 


COLLATION. Inthe civil law. The 
collation of goods is the supposed or real re- 
turn to the mass of the succession which an 
heir makes of property which he received in 
advance of his share or otherwise, in order 
that such property may be divide! together 
with the other effects of the succession. Civil 
Code La, art. 1227. 

The term is soinctimes used also in com- 
mon-law jurisdictions in the sense given 
above. It is synonymous with “hotchpot.” 

In practice. The comparison of a copy 
with its original to ascertain its correctness; 
or the report of the officer who made the 
comparison. 


COLLATION OF SEALS. When upon 
the same label one seal was set on the back 
or reverse of the other. Wharton. 


COLLATION TO A BENEFICE. In 
eeclesinstical law. This occurs where the 
bishop and patron are one and the same per- 
son, in which case the bishop cannot present 
the clergyman to himself, but does, by the 
one act of collation or conferring the bene- 
fice, the whole that is done in common cases 
both by presentation ana institution, 2 BL 
Comm. 22. 


COLLATIONE FACTA UNI POST 
MORTEM ALTERIUS. A writ directed 
to justices of the common pleas, conmand- 
ing them to issue their writ to the bishop, 


The an- 


220 


COLLEGE 


for the admission of a clerk in the place of 
another presented by the crown, where there 
had been a demise of the crown during a 
suit; for judgment once passed for the king's 
clerk, and he dying before admittance, the 
king may bestow his presentation on another, 
Reg. Orig. 31. 


COLLATIONE HEREMITAGII. In 
old English law. A writ whereby the king 
conferred the keeping of an hermitage upon 
aclerk. Reg. Orig. 303, 308. 


COLLECT. To gather together; to bring 
scattered things (assets, accounts, articles of 
property) into one mass or fund. 

To collect a debt or claim is to obtain pay- 
ment or liquidation of it, either by personal 
solicilation or legal proceedings. 


COLLECTOR. One authorized to re 
ceive taxes or other impositions; as “collect. 
or of taxes,” A person appointed by a pri- 
vate person to collect the credits due him, 


COLLECTOR OF DECHDENT’S ES- 
TATE. A person temporarily appointed by 
the probate court to collect rents, assets, in- 
terest, bills receivable, ete., of a decedent's 
estate, and act for the estate in all financial 
matters requiring immediate settlement. 
Sueh collector is usually appointed when 
there is protracted litigation as tothe probate 
of the will, or as to the person to take out 
administration, and his duties cease as soon 
as an executor or administrator {s qualified. 


COLLECTOR OF THE CUSTOMS. 
An officer of the United States, appointed for 
the term of four years. Act May 15, 1820, 
§ 1; 3 Story, U. S. Laws, 1790. 


COLLEGA. In the civil law. 
vested with joint authority. 
an associate. 


COLLEGATARIUS, Lat. In the civil 
law. Aco-legatee. Inst. 2, 20, 8, 


COLLEGATORY. A co-legatee; a per- 
son who has a legacy left to him in common 
with other persons. 


COLLEGE. An organized assembly or 
collection of persons, established by law, and 
empowered to co-operate for the perform- 
ance of some special function or for the pro- 
motion of some common object, which may 
be educational, political, ecclesiastical, or 
scientific in its character. 

The assemblage of the cardinals at Rome 
iscalleda “coliege.” So, in the Uniied States, 
the body of presidential electors is called the 
“electoral college.” 


One in- 
A colleague; 


=== 


COLLEGE 


the most common use of the word, it 
uenates an institution of learning (usually 
incorporated) which offers instruction in the 
liberal arts and humanities and in scientific 
branches, but not in the teelinical arts or 
those studies preparatory to admission to the 
professions. 

In England, it is a civil corporation, com- 
pany or society of men, having certain priv- 
ileges, and endowed with certain revenues, 
founded by royal license. An assemblage of 
several of these colleges is called a “univer- 


sity.” Wharton. 

COLLEGIA. In thecivillaw. The 
guild of a trade. 

COLLEGIALITER. In a corporate ca- 
paciiy, 2 Kent, Comm. 296. 


COLLEGIATE CHURCH. In English 
ecclesiastical law. A church built and en- 
dowed for a society or body corporate of a 
dean or other president, and secular priests, 
as canons or prebendaries in the said chureh; 
auch as the churches of Westminster, Wind- 
sor, ind others. Cowell. 


COLLEGIUM. In thecivillaw. A 
word having various meanings; e. g., an as- 
sembly, society, or company; a body of bish- 
Ops; am army; a class of men. But the 
principal idea of the word was that of an as- 
pociation of individuals of the same rank and 
slation, or united for the pursuit of some 
business or enterprise. 


COLLEGIUM AMMIRALITATIS. 
The college or society of the admiralty. 


Collegium est societas plurium cor- 
porum simul habitantium. Jenk. Cent. 
229. A collegeis a society of several persons 
dwelling together. 


COLLEGIUM ILLICITUM. One 
which abused its right, or assembled for any 
other purpose than that expressed in its 
charter. 


COLLEGIUM LICITUM. An assem- 
blage or society of men united for some use- 
ful purpose or business, with power to act 
like asingle individual. 2 Kent, Comm, 269. 


COLLIERY. This term is sufficiently 
wide to include all contiguous and connected 
veins and seams of coal which are worked as 
one concern, Without regard to the closes or 
pieces of ground under which they are car- 
tled, and apparently also the engines and 
machinery in such contiguous and connected 
veins. MacSwin, Mines, 25. See 58 Pa. 
St. 85. 


221 


COLLUSION 


COLNIGENDUM BONWA DEFUNCTI. 
See Ap COLLIGENDUM, etc. 


COLLISION. In maritime law. The 
act of ships or vessels striking together. 

In its strict sense, collisiun means the im- 
pact of two vessels both moving, and is dis- 
tinguished from ailision, which designates 
the striking of a moving vessel against one 
that is stationary. But collision is used in a 
broad sense, to include allision, and perhaps 
other species of encounters between vessels. 

The term is not inapplicable to cases where a 
stationary vessel is struck by one under way, 
strictly termed “allision;” or where one vessel is 
brought into contact with another by swinging at 
anchor. And even an injury received by a vessel 
at her moorings, in consequence of being violently 
rubbed or pressed against by # second vessel lying 
along-side of her, in consequence of a collision 
against such second vessel by a third one under 
way, may be compensated for, under the general 
head of “collision,” as well as an injury which is 
the direct result of a “blow,” properly so called. 
Abb. Adm. 73. 


COLLISTRIGIUM. 


COLLITIGANT. 
with another. 


The pillory. 
One who litigates 


COLLOBIUM. A hood or covering for 
the shoulders, formerly worn by serjeants at 
law. 


COLLOCATION. In French law, The 
arrangement or marshaling of the creditors 
of an estate in the order in which they are 


| to be paid according to law. Merl. Report. 


COLLOQUIUM. One of the usual parts 
of the declaration in an action for slander. 
It is a general averment that the words com- 
plained of were spoken “of and concerning 
the plaintiff,” or concerning the extrinsie 
matters alleged in the inducement, and its 
offiee is to connect the whole publication with 
the previous statement. 

An averment that the words in question 
are spoken of or concerning some usage, re- 
port, or fact which gives to words otherwise 
indifferent the peculiar defamatory meaning 
ussigned to them. 16 Pick. 6. 


COLLUSION. A deceitful agreement or 
compact between two or more persons, for 
the one party to bring an action againsi the 
other for some é6vil purpose, as te defraud a 
third party of his right. Cowell. 

A secret arrangement between two or 
more persons, whose interests are apparently 
conflicting, to make use of the forms and 
proceedings of law in order to defraud a 
third person, or to obtain that which justice 


D 


G 


H 


COLLUSION 


would not give them, by deceiving a court or 
its officers. 

In divorce proceedings, collusion is an 
agreement between husband and wife that 
ene of them shall commit, or appear to have 
committed, or be represented in court as 
having committed, acts constituting a cause 
of divorce, for the purpose of enabling the 
other to obtain a divorce. Civil Code Cal. 
$114. But it also means connivance or con- 
spiraey in inillating or prosecuting the suit, 
as where there is a compact for mutual aid 
in carrying it through to a decree. 


COLLYBISTA. In the civil law. 
money-changer; a dealer in money, 


COLLYBUM, 
change. 


COLNE. In Saxon and old English law. 
An aceount or caleulation. 


A 


In the civillaw. Ex- 


COLONIAL LAWS. In America, this 
term designates the body of law in force in 
the thirteen original colonies before the Dec- 
laration of Independence. In England, the 
term signifies the laws enacted by Canada 
and the other present British colonies. 


COLONIAL OFFICE. In the English 
government, this is the department of state 
through which the sovereign appoints colo- 
nial governors, etc., and communicates 
with them, Until the vear 1854, the secre- 
tary for the colonies was also secretary for 
war, 


COLONUS. In old European Jaw. A 
busbandman; an inferior tenant employed in 
cultivating the lord's land, A term of Ro- 
man origin, corresponding with the Saxon 
ceorl. 1 Spence, Ch. 51. 


COLONY. A dependent political com- 
munity, consisting of a number of citizens of 
the same country who have emigrated there- 
froia to people another, and remain subject 
to the mother-country. 3 Wash. C. C. 287, 

A settlement in a forcign country pos- 
sessed and cultivated, either wholly or par- 
tially, by immigrants and their descendants, 
who have a political connection with and 
subordination to the mother-country, whence 
they emigrated. Inother words, it is a placa 
peopled from some more ancient city or coun- 
try. Wharton. 


COLOR. An appearance, semblanee, or 
simulacrwm, as distinguished from that which 
is real. A prima facie or apparent right, 
Hence, a deceptive appearance; a plausible, 


a 


22 


ee 


COLOR OF TITLE 


assumed exterior, concealing a lack of real. 
ity; a disguise or pretext. 

In pleading. Ground of action admitted 
to subsist in the opposite party by the plead- 
ing of one of the parties toan action, which 
is so set out as to be apparently valid, but 
which is in reality legally insufticient. 

This was a term of the ancient rhetori- 
cians, and early adepted into the language of 
pleading. It was an apparent or prima 
Jaeteright; and the meaning of the rule that 
pleadings in confession and uvoidanes should 
give color was that they should confess the 
matter adversely alleged, to such an extent, 
at least, as to admit some apparent right in 
the opposite party, which required to be en- 
countered and avoided by the allegation of 
new matter. Color was either express, é. @., 
inserted in the pleading, or implied, which 
was naturally inherent in the structure of 
the pleading. Steph. Pl, 233. 

The word also means the dark color of the 
skin showing the presence of negro blood; 
and henee it is equivalent to African descent 
or parentage. 


COLOR OF OFFICHK, An act unjusily 
done by the countenance of an office, being 
grounded upon corruption, to which the oflice 
is as a shadow and color. Plow. 64. 

A claim or assumption of right te do an 
act by virtue of an office, made by a person 
who is legully destitute of any such right, 

The phrase implies, we think, some official power 


} vested in the actor,—hea must be at least officer de 


facto. We do not understand that an act of a 
mere pretender to un office, or false personator of 
an officer, is said to be done by color of office. And 
it implies an illegal claim of authority, by virtue 
of the office, to do the act or thing in question. 28 
Wend, 606, 


COLOR OF TITLE. The appearance, 
semblance, or simitlaerum of title. Any fact, 
extraneous to the act or mere will of the 
claimant, which has the appearance, on its 
tace, of supporting his claim of a present ti- 
tle to land, but whieh, for some defect, in 
reality falis short of establishing it. 

“Color of title is anything in writing purport- 
ing to convey title to the land, which defines the 
extent of the ciaim, it being immaterial how de 
fective or imporfect the writing may be, so that it 
is a sign, semblance, or color of title.” 70 Ga, 309. 

Color of title is that which the law considers 
prima facie a good title, but which, by reason of 
some defect, uot appearing on its face, does not 
in fact amount to title. An abolute nullity, asa 
yoid deed, judgment, eto, will not constitute color 
of title, 88 Cal. 668. 

4 Any instrument having a grantor and grantee, 
and containing a description of the lands intended 
te be conveyed, and apt words for their convey- 


COLOK OF TITLE 


es color of title to the lands described. 
instrument purports to be a conveyance 
tle, and because it does not, for some rea- 
ave that effect, it passes only color or the 
ermblance of a title.” 385 Ill. 392, 

Itis not synonymous with “claim of title.” To 
rmer, # paper title is requisite; but the latter 
exist wholly in parol]. 80 Towa, 480. 


COLORABLE. That which has or gives 
color. That which is in appearance only, 
and not in reality, what it purports to be. 


COLORABLE ALTERATION. One 
which makes no real or substantial change, 
but is introduced only as a subterfuge or 
means of evading the patent or copyright law. 


COLORABLE IMITATION. In the 
law of trade-marks, this phrase denotes such 
a close or ingenious imitation as to be caleu- 
lated to deceive ordinary persons. 


COLORABLE PLEADING. The prac- 
tice of giving color in pleading. 


COLORE OFFICII. By color of office. 


“COLORED MAN.” There is no legal, 
technical signification in this phrase which 
the courts are bound judicially to know. 31 
Tex. 74. 


COLORED PERSON. A person of Af- 
ican descent or negro blood, 


COLPICES. Young poles, which, being 
cut down, are made leversor lifters. Blount. 


COLPINDACH. In old Seotch law. A 
young beast or cow, of the age of one or two 
years; in later times called a “cowdash.” 


COLT. An animal of the horse species, 
whether male or female, not more than four 
vears old. Russ. & R. 416. 


COMBARONES. In old English law. 
Fellow-baruns; fellow-citizens. The citizens 
or freemen of the Cinque Ports being an- 
ciently called “barons;” the term “combaz7on- 
eg” is used in this sense in a grant of Henry 
ILL. to the barons of the port of Fevresham. 
Cowell. 


COMBAT. A forcible encounter between 
two or more persons; a battle; a duel. Trial 
by battel. 


COMBATERRA. A valley or piece of 
low ground between two hills. Kennett, 
Gioss. 


COMBE, A small or narrow valley. 


COMBINATION. 
federation of men for unlawful or violent 
deeds. 


223 


A conspiracy, or con- | 


COMITATUS 


A union of different elements. A patent 
mnay be taken out for a new combination of 
existing machines. 2 Mason, 112. 


'COMBUSTIO. Burning. 
In old English law, ‘The punishment in- 
flicted upon apostates, 


COMBUSTIO DOMORUM. 
burning; arson. 4 Bl. Comm. 272. 


COMBUSTIO PECUNIZ. Burning of 
money; the ancient method of testing mixed 
and corrupt money, paid into the exchequer, 
by melting it down. 


House- 


COME. To present oneself; to appear in 
court. In modern practice, though such 
presence may be constructive only, the word 
is still used to indicate participation in 
the proceedings. Thus, a pleading may be- 
gin, “Now comes the defendant,” ete. In 
case of a default, the technical language of 
the record is that the party “comes nut, but 
makes default.” 


COMES, ov. A word used in a pleading to 
indicate the defendant’s presence in court. 
See Come. 


COMES, 2. Lat. 
ant; acount or earl. 


COMES AND DEFENDS. This phrase, 
anciently used in the language of pleading, and 
still surviving in some jurisdictions, occurs 
at the commencement of a defendant’s plea 
or demurrer; and of its two verbs the former 
signifies that he appears in court, the latter 
that he defends the action. 


COMINUS. Lat. Immediately; 
to-hand; in personal contact. 


A follower or attend- 


hand- 


COMITAS. Lat. Comity, courtesy, civil- 
ity. Comiias inter communitates; or comi- 
tas inter gentes; comity between eommuni- 
ties or nations; comity of nations. 2 Kent, 
Comm. 457. 


COMITATU COMMISSO. A writ or 
commission, whereby a sheriff is uuthorized 
to enter upon the charges of a county, Reg. 
Orig. 295. 


COMITATU ET CASTRO COMMIS- 
SO. A writby which the charge of a county, 


| together with the keeping of a castle, is com 


mitted to the sheriff. 


COMITATUS. In old English law. A 
county or shire; the body of a county. The 
territorial jurisdiction of a comes, i. e., count 
or earl, The county court, a court of great 
antiquity and of great dignity in early times. 


COMITES 


Also, the retinue or train of a prince or high 
governmental official. 


COMITEHS. Counts or earls. Attend- 
ants or followers, Persons composing the 
retinue of a bigh functionary. Persons who 
are attached to the suite of a public min- 
ister. 


COMITES PALEYS. Counts or earls 
palatine; those who had the government ofa 
county palatine. 


COMITIA. In Roman law. An assem- 
bly, either (1) of the Roman curie, in which 
cuse it was called the “comitia curtata vel 
ealata;” or (2) of the Roman centuries, in 
which case it was called the “comitia centt- 
tala,” or (3) of the Roman tribes, in which 
case it was called the “cométia twibuta.” 
Only patricians were members of the first 
comitia, and only plebians of the last; but 
the comitia centuriate comprised the entire 
populace, patricians and plebians both, and 
was the great legislative assembly passing 
the deges, properiy su called, as the senate 
passed the senatus consulia, and the comitia 
tribute passed the plebisciia, Underthe Lea 
Hortensia, 257 B. C., the plehiscitum ac- 
quired the force of alex. Brown. 


COMITISSA. In old English law. A 
countess; an earl’s wife. 


COMITEIVA. In old English law. The 
dignity and office of a comes, (count or earl;) 
the same with what was afterwards called 
“comitatias.” 

Also a companion or fellow-traveler; a 
truop or company of robbers. Jacob. 


COMITY. Courtesy; complaisanee; re- 
spect; a willingness to grant a privilege, 
not as a matter of right, but out of deference 
and good will. See next title. 


COMITY OF NATIONS. The most 
appropriate phrase to express the true foun- 
dation and extent of the obligation of the 
Jaws of ong nation within the territories of 
another. It is derive! allugether from the 
voluntary consent of the latter; and itis inad- 
tnissible when it is contrary to its known 
policy, or prejudicial to its interests. Inthe 
silence of any positive rule ailirming or de- 
nying or restraining the operation of foreign 
laws, courts of justice presume the tacit 
adoption of them by their own government, 
unless repugnant to its policy, or prejudicial 
to its interests. It ia not the comity of the 
eourts, but the comity of the nation, which 
is administered and ascertained in the same 


224 


COMMANDITE 


way, and guided by the same reasoning, by 
which ali other principles of the municipal 
law are ascertained and guided. Story, Conil. 
Laws, § 38. 

The comity of nations (comitas yenttum) 
is that body of rules which states observe to- 
warda one another from courtesy or mutual 
convenience, although they do not form part 
of international law. Holtz. Enc. ¢. 2. 


COMMAND. 
rection, or behest. 


COMMANDEMENT. InFrenchlaw. A 
writ served by the Awisster pursuant to a 
judgment er to an executory notarial deed. 
Its object is to give notice to the debtor that 
if he does rot pay the sum to which he has 
been condemned by the judgment, or which 
he engaged to pay by the notarial deed, his 
property will be seized and sold. Arg. Fr. 
Mere. Law, 550. 


COMMANDERIN CHIEF. By article 
2, § 2, of the constitution it is declared that 
the president shall be commander in chief of 
the army and navy of the United States. 
‘The term implies supreme control of military 
operations during the progress of a war, not 
only on the side of strategy and tactics, but also 
in reference to the political and international 
aspects of the war. 


COMMANDERY. In old English law. 
A munor or chief messuage with lands and 
tenements thereto appertaining, which be- 
longed to the priory of St. Jounof Jerusalem, 
in England; he who had the government of 
such a manor or house was styled the “com- 
mander,” wlio could not dispose of it, but to 
the use of the priory, only taking thence his 
own sustenance, according to his degree. 
The manors and lands belonging to the priory 
of St. John of Jerusalem were given to 
Henry the Eighth by 32 Hen. VIII. ec. 20, 
about the time of the dissolution of abbeys 
and monasteries; so that the name only of 
commanderies remains, the power being long 
Since extinct. Wharton, 


COMMANDITAIRES. Special partnera; 
parinersencammandité, See COMMANDITE. 


An order, imperative di- 


COMMANDITE. In French law. A 
special or limited partnership, where the con- 
tract is between one or More persons who are 
general partners, and jointly and severally 
responsible, and one or more other persons 
who merely furnish a particular fund or cap- 
ital stock, and thence are called “commanda- 
taires,” or “commendataires,” or “partners 
en commandilé;” the business being carried 


COMMANDMENT 2 


on under the social name or firm of the gen- | 


eral partners only, composed of the names of 
the general or complementary partners, the 
partners in eommandité being liable to losses 
only to the extent of the funds or capital fur- 
nished by them. Story, Partn. § 78; 3 Kent, 
Comm. 34. 


COMMANDMENT. In practice. An 
authoritative order of a judge or magisterial 
officer. 

In criminal law. The act or offense of 
one who commands another to transgress the 
law, or do anything contrary to law, «s theft, 
murder, or the like. Particularly applied to 
the act of an accessary before the fact, in in- 
citing, procuring, setting on, or stirring up 
another to do the fact or act. 2 Inst. 182. 


COMMARCHIO. 
fines of land. 


COMMENDA. In French law. The 
delivery of a benefice to one whe cannot hold 
the legal title, to keep and manage it for a 
time limited and render an account of the 
proceeds. Guyot, Rép. Univ. 

In mereantile law. An association in 
which the management of the property was 
intrusted to individuals. Troub. Lim. Partn. 
ce. 3, § 27. 


Commenda est facultas recipiendi et 
retinendi beneficium contra jus positiv- 
um & suprema potestate. Moore,905. A 
cominendam is the power of receiving and 
retaining a benefice contrary to positive law, 
by supreme authoriiy. 


COMMENDAM., In ecclesiastical law. 
The appointment of a suitable clerk to hold 
a void or vacant benefice or church living 
until a regular pastor be appointed. Hob. 
144; Latch, 236. 

In commercial law. The limited part- 
nership (or Socitté en commandit:) of the 
French law has been introduced into the 
Code of Louisiana under the title of “Part- 
nership in Commendam.” Civil Code La, 
art. 2510. 


COMMENDATIO. In the civil law. 
Commendation, praise, or recommendation. 


COMMENDATION. In feudal law. 
This was the act by which an owner of al- 


A boundary; the con- 


a 


od 


lodial land placed himself and his land under ; 


the protection of a lord, so as to constitute 
himself his vassal or feudal tenant. 


COMMENDATORS. Secular persons 
upon whom ecclesiastical benefices were be- 
AM. DICT.LAW—15 


5 COMMERCE. 


stowed in Scotland; called so because the 
benefices were commended and intrusted to 
their supervision. 


COMMENDATORY. He who holds a 
church living or preferment iz commendam. 


COMMENDATORY LETTERS, In 
ecclesiastical law. Such as are written by 
one bishop to another on behalf of any of 
the clergy, or others of his diocese traveling 
thither, that they may be received among the 
faithful, or that the clerk may be promoted, 
or necessaries administered to others, ete. 
Wharton. 


COMMENDATUS. In feudallaw. One 
who intrusts bimself to the protection of 
another, Spelman. A person who, by vol- 
untary homage, put himself under the vro- 
tection of a superior lord. Cowell. 


COMMERCE. ‘The various agreements 
which have for their object facilitating the 
exchange of the products of the earth or the 
industry of man, with an intent to realize a 
profit. Pard. Droit Com. n. 1. <A general 
term including the specific contracts of sale 
and exchange. 

The intercourse of nations in each other’s 
produce and manufactures, in which tha 
superfiuities of one are given for those of 
another, and then re-exchanged with other 
nations for mutual wants. Wharton. 

Commerce is the interchange or mutual change 
of goods, productions, or property of any kind be- 
tween nations or individuals. Transportation is 
the means by which commerce is carried on. 45 
Iowa, 3383. 

Commerce isaterm of the largest import. It 
comprehends intercourse for the purposes of trade 
in any and all its forms, including the transporta- 
tion, purchase, sale, and exchange of commodities 
between the citizens of our country and the citi- 
zeus or subjects of other countries, and between 
the citizens of different states. The power to reg- 
ulate it embraces all the instruments by which 
such commerce may be conducted. 91 U. S. 275. 

Commerce is not limited to an exchange of com- 
modities only, but includes, as well, intercourse 
with foreign nations and between the states; and 
includes the transportation of passengers. 3 Cow. 
T13; 34 Cal. 492, 

The words “commerce” and “trade” are 
synonymous, but not identical. They are 
often used interchangeably; but, strictly 
speaking, commerce relates to intercourse or 
dealings with foreign nations, stutes, or po- 
litical communities, while trade denotes bus- 
iness intercourse or mutual traffic within the 
limits of a state or nation, or the buying, 
selling, and exchanging of arlicles between 
members of the same community. Sea 4 
Denio, 353; Jacob; Wharton. 


COMMERCIA BELLI 


YVUMMERCIA BELLI. War contracts. 
Compacts entered into by belligerent nations 
to secure a temporary and limited peace. 1 
Kent, Comm. 159. Contracts between na- 
tions at war, or their subjecis. 


COMMERCIAL LAW. A phrase used 
to designate the whole body of substantive 
jurisprudence applicable to the rights, inter- 
course, and relations of persons engaged in 
coinmerce, trade, or mercantile pursuits. It 
is not a very scientific or accurate term. As 
foreign commerce is carried on by means of 
shipping, the term has come to be used oc- 
easionally as synonymous with “maritime 
law;” but, in strictness, the phrase “com- 
mercial law” is wider, and includes many 
transactions or legal questions which have 
nothing to do with shipping or its incidents. 


COMMERCIAL PAPER. The term 
“commercial paper” means bills of exchange, 
promissory notes, bank-checks, and other ne- 
gotiable instruments for the payment of 
money, which, by their form and on their 
fuce, purport to be such instruments as are, 
by the law-merchant, recognized as falling 


under the designation of “commercial pa- | 


per.” 6N. B. R. 338. 

Commercial paper means negotiable paper 
given in due course of business, whether the 
element of negotiabilily be given it by the 
law-merchant or by statute.. A note given 
by a merchant for money loaned is within the 
meaning. 5 Biss. 113. 


COMMERCIAL TRAVELER. Where 
an agent simply exhibits samples of goods 
kept for sale by his principal, and takes or- 
ders from purchaser's for such goods, which 
goods are afterwards to be deliveredgby the 
principal to the purchasers, and payment for 
the goods is to be made by the purchasers to 
the principal on such delivery, such agent is 
generally called a “drummer” or “commer- 
cial traveler.” 34 Kan. 484, 8 Pac. Rep. 
865; 93 N.C. 511. 


COMMERCIUM. Lat. In the civil 
law. Commerce; business; trade; dealings 
in the nature of purchase and sale; a con- 
tract. 


Commercium jure gentium commune 
esse debet, et non in monopolium et 
privatum paucorum questium conver- 
tendum. 3 Inst. 181. Comnierce, by the 
law of nations, ought to be common, and not 
converted to monopoly and the private gain 
of a few. 


226 


j 


{ 


COMMISSION 


COMMINALTY. 
the people. 


The commonalty or 


COMMINATORIUM. In old practice. 
A clause sometimes added at the end of writs, 
admonishing the sheriff to be faithful in ex- 
eculing them. Bract. fol. 398. 


COMMISE. In old French law. For. 
feiture; the forfeiture of a fief; the penalty 
attached to the ingratitude of a vassal. Guyol, 
Inst. Feod. ¢. 12. 


COMMISSAIRE. In French law. A 
person who receives from a meeting of 
shareholders a special authority, viz., that 
of checking and examining the accounts of 
a manager or of valuing the anports en nat. 
ure, (q- v0.) The name is also applied toa 
judge who receives from a eourt a special 
mission, e. g., to institute an inquiry, or lo 
examine certain books, or to supervise the 
operations of a bankruptey. Arg. Fr. Mere, 
Law, 551. 


COMMISSAIRES-PRISEURS. In 
French law. Auctioneers, who possess the 
exclusive right of selling personal property at 
public sale in the towns in which they are 
established; and they possess the same right 
concurrently with notaries, grefficrs, and 
huissiers, in the rest of the arrondissement, 
Arg. Fr. Mere, Law, 551. 


COMMISSARIAT. The whole body of 
oflicers who make up the commissaries’ de- 
partment of an army. 


COMMISSARY. In ecclesiastical law. 
One who is sent or delegated to execute sume 
oflice or duty as the representative of his su- 
perior; an officer of the bishop, who exercises 
spiritual jurisdiction in distant parts of the 
diocese. 

In military law. An officer whose prin- 
cipal duties are to supply an army with pro- 
visions and stores. 


COMMISSARY COURT. A Scotch ee- 
clesiastical court of general jurisdiction, held 
before four commissioners, members of the 
Faculty of Advocates, appointed by the 
crown. 


COMMISSION. A warrant orauthority 
or letters patent, issuing from the govern- 
ment, or one of its departments, or a court, 
empowering a person or persons named to do 
certain acts, or to exercise jurisdictiun, or to 
perform the duties and exercise the authority 
of an office, (as in the case of an odicer in tha 
army or navy.) 


COMMISSION 


Also, in private affairs, it signifies the au- 
thority or instructions under which one per- 
son transacts business or negotiates for an- 
other. - 

In a derivative sense, a body of persons to 
whom a commissiun is directed. A board or 
committee officially appointed and empowered 
to perform certain acts or exercise certain 
jurisdiction of a public nature or relation; as 
a “commission of assise.” 

In the civil law. <A species of bailment, 
being an undertaking, without reward, to do 
something in respect to an article bailed; 
equivalent to “mandate.” 

In commercial law. The recompense 
or reward of an agent, factor, broker, or 


bailee, when the same is calculated as a per- | 
centage on the amount of his transactions or | 


on the profit to the principal. But in this 
sense the word occurs more frequently in the 
plural. 

In criminal law. Doing or perpetration; 
the performance of an act. 

In practice. An authority or writ issu- 
ing from a court, in relation to a cause be- 
fore it, directing and authorizing a person or 


special function; usually to take the deposi- 
tions of witnesses, 


A commission is a process issued under the seal 
of the court and the signature of the clerk, directed 
to some person designated as commissioner, au- 
thorizing him to examine the witness upon oath on 
{nterrogatories annexed thereto, to take and certify 
the deposition of the witness, and to return it ac- 
cording to the directions given with the commis- 
sion. Pen. Code Cal. § 1351. 


COMMISSION DAY. In English prac- 
tice. The opening day of the assises. 


COMMISSION DEL CREDERE, in 
commercial law, is where an agent of a seller 
undertakes to guaranty to his principal the 
payment of the debt due by the buyer. The 
phrase “del eredere” is borrowed from the 
Italian language, in which its signilication is 
equivalent to our word “guaranty” or “ war- 
ranty.” Story, Ag. 28. 


COMMISSION MERCHANT. Aterm 
which is synonymous with “factor.” It 
means one who receives goods, chattels, or 
merchandise for sale, exchange, or other dis- 
position, and who is to receive a compensation 
for his services, to be paid by the owner, or 
derived from the sale, etc., of the goods. 50 
Ala. 154. 


COMMISSION OF ANTICIPA- 
TION. 


227 


COMMISSION OF LUNACY 


der the great seal to collect a tax or subsidy 
before the day. 


COMMISSION OF APPRAISEMENT 
AWD SALE. Where property has been ar- 
rested in an admiralty action in rem and or- 
dered by the court to be sold, the order is ear- 
ried out by a commission of appraisement 
and sale; in some cases (as where the prop- 
erty is to be released on bail and the value is 
disputed) a commission of appraisement only 
is required. Sweet, 


COMMISSION OF ARRAY. In En- 
glish law. A commission issued to send in- 
to every county officers to muster or set in 
military order the inhabitants. The intro- 
duction of commissions of lieutenancy, which 
contained, in substance, the same powers as 
these commissions, superseded them. 2Steph, 
Comm. (7th Ed.) 582. 


COMMISSION OF ASSISEH. Those is- 
sued to judges of the high court or court 
of appeal, authorizing them to sit at the aa- 
sises for the trial of civil actions. 


COMMISSION OF BANKRUPT. A 


| commission or authority formerly granted by 
persons named todo some act or exercise some 


the lord chancellor to such persons as he 
should think proper, to examine the bank- 
rupt in all matters relating to his trade and 
eifects, and to parform various other impor- 
tant duties connected with bankruptcy mat- 
ters. But now, underst.1 &2 Wm.IV.c. 
56, § 12, a fiat issues instead of such com- 
mission, 

COMMISSION OF CHARITABLE 
USES. This commission issues out of chan- 
cery to the bishop and others, where lands 
given to charitable uses are misemployed, or 
there is any fraud or dispute concerning 
them, to inquire of and redress the same, 
etc. 


COMMISSION OF DELEGATES. 
When any sentence was given in any eccle- 
slistical cause by the archbishop, this com- 
mission, under the great seal, was directed 
to certain persons, uSually lords, bishops, and 
judges of the law, to sit and hear an appeal 
of the same to the king, in the court of chan- 
cery. But latterly the judicial committee of 


| the privy council bas supplied the place of this 


commission. Brown. 


COMMISSION OF LUNACY. A wril 
issued out of chancery, or such court as may 
have jurisdiction of the case, directed to a 


| proper ollicer, to inquire whether a person 


named therein is a lunatic or not. 1 Bouy. 


In English law. An authority un- | Inst. n. 382, et seq. 


COMMISSION OF PARTITION 


COMMISSION OF PARTITION. In 
the former English equity practice, this was 
& commission or authority issued to certain 
persons, to effect a division of lands held by 


tenants in common desiting a partition; | 


when the commissioners reported, the parties 
were ordered to execute mutual conveyances 
to confirm the division. 


COMMISSION OF REBELLION. In 
English law. An attaching process, former- 
ly issuable out of chancery, to enforce obe- 
dienee to a process or decree; abolished by or- 
der of 26th August, 1841, 


COMMISSION OF REVIEW. In En- 
glish ecclesiastical law. A commission for- 
merly sometimes granted in extraordinary 
cases, to revise the sentence of the court of 
delegates. 3 Bl. Comm. 67. Now out of 
use, the privy council being substituted for 
the court of delegates, as the great court of 
appeal in all ecclesiastical causes. 3 Steph. 
Comm. 492, 


COMMISSION OF THE PEACE. In 
English law. A commission from the crown, 
appointing certain persons therein named, 
jointly and severally, to keep the peace, ete. 
Justices of the peace are always appointed by 


: ts | 
special commission under the great seal, the 


form of which was settled by all the judges, 
A. D. 1590, and continues with little altera- 
tion to this day. 1 Bi. Comm. 351; 3 Steph. 
Comm. 89, 40. 


COMMISSION OF TREATY WITH 
FOREIGN PRINCES. Leagues and ar- 
rangements made between states and king- 
doms, by their ambassadors and ministers, 
for the mutual advantage of the kingdouis in 
alliance. Wharton. 


COMMISSION OF UNLIVERY. In 
an action in the English admiralty division, 
where if is necvssary to have the cargo ina 
ship unladen in order to have it appraised, a 
commission of unliyery is issued and exe- 
cuted by the marshal. Williams & B. Adm. 
Jur. 233. 


COMMISSION TO EXAMINE WIT- 
WESSES. In practice. A commission issued 
out of $he court in which an action is pend- 
ing, to direct the taking of the depositions of 
witnesses who are beyond the territorial 
jurisdiction of the court. 


COMMISSION TO TAKE ANSWER 
IN CHANCERY. In English law. A 
eommission issued when defendant lives 
abroad to swear him to such answer. 15 & 


228 COMMISSIONERS OF HIGHWAYS 


16 Vict. c. 86, § 21. Obsolete. 
Acts, 1873, 1875. 


COMMISSION TO TAKE DEPOSI- 
TIONS. A written authority issued by a 
court of justice, giving power to take the 
testimony of witnesses who eannot be per- 
sonally produced in court. 


COMMISSIONER. A person to whom 
a commission is directed by the government 
or a court. 

In the governmental system of the United 
States, this term denotes an officer who is 
charged with the administration of the laws 
relating to some particular subjeet-matter, or 
the management of some bureau or agency 
of the government. Suvh are the commis- 
sioners of education, of patents, of pensions, 
of fisheries, of the general land-oflice, of 
Indian affairs, etc. 

In the state governmental systems, also, and 
in Kngland, the term is quite extensively 
used as a designation of various officers hav- 
ing a similar authority and similar duties, 


COMMISSIONER OF PATENTS. An 
officer of the United States government, be- 
ing at the head of the bureau of the patente 
office, 


COMMISSIONERS OF BAIL. Offi- 
cers appointed to take recugnizances of bail 
in civil cases. 


COMMISSIONERS OF BANK- 
RUPTS. The name given, under the former 
English practice in bankruptey, to the per- 
sons appointed under the great seal to exe- 
cute a commission of bankruptcy, (g. v.) 


COMMISSIONERS OF CIRCUIT 
COURTS. Officers appointed by and at- 
tached to the circuit courls of the United 
States, performing functions partly ministe- 
rialand partly judicial. Toa certain extent 
they represent the judge in his absence. In the. 
examination of persons arrested for violations 
of the laws of the United States they have 
the powers of committing magistrates. They 
also take bail, recognizances, affidavits, etc., 
and hear preliminary proceedings for foreign 
extradition. ‘ 


COMMISSIONERS OF DEEDS. Of- 
ficers empowered by the government of one 
state to reside in another state, and there 
take acknowledgments of deeds and other 
papers which are to be used as evidence or 
put on record in the former state. 


COMMISSIONERS OF HIGHWAYS. 
Gificers appointed in each county or town- 


See Jud. 


COMMISSIONERS OF SEWERS 229 COMMODATUM 


ship, in many of the states, with power to | in the expectation of their act being confirmed 
tiuke charge of the altering, opening, repair, | by the body they profess to represent or act 
and vacating of highways within such coun- | for. 15 Mees. & W. 529. 

ly or township. : The term is especially applied to the per- 


COMMISSIONERS OF SEWERS. in | 80% °F persons who are invested, by order of 
English law. Coinmissioners appointed un- a ic sii Ree bs guardianship of 
der the great seal, and constiluting a court 18, PSyRe OS Se ate of one who has been 
of special jurisdiction; which is to overlook adjudged ali aaa , 
the repairs of the banks and walls of the sea- In parliamentary law. A portion of a 
cost and navigable rivers, or, with consent legislative body, comprising one OF more 
of a certain proportion of the owners and oc- | ™embers, who are charged with the duty of 
eupiers, to make new ones, and to cleanse | &X#mining some matter specially referred to 
such rivers, and the streams communicating them by the house, or of deliberating upon it, 
therewith. St.3 & 4 Wm. IV. c. 22, § 10; and reporting to the house the result of their 
8 Steph. Comm. 442. investigations or recommending a course of 


P action. A committee may be appvinted for 
COMMISSIONS. The compensation or | one special oceasion, or it may be appointed 
reward paid to a factor, broker, agent, bailee, 


/ todeal with all matlers which may be referred 
executor, trustee, receiver, etc., when the | to it during a whole session or during the 
same igs calculated as a percentage on the 


¢ life of the body. In the latter case, it is 
amount of his transactions or the amount re- | eailed a “standing committee.” It ig usual- 
ceived or expended. 


ly composed of a comparatively small num- 
COMMISSORIA LEX. In Roman law. | ber of members, but may include the whole 
A clause which might be mserted in an 


house. 

agreement for a sale upon credit, to the effect COMMITTITUR. In practice. An or- 
that the vendor should be freed from his ob- | der or minute, setting forth that the person 
ligation, and might rescind the sale, if the | named in it is committed to the custody of 
yendee did not pay the purchase price at the | the sheriff, 

appuinted time. Also a similar agreement COMMITTITUR PIECE. An instru- 
between a debtor and his pledgee that, ifs | sont in writingon paper or parchment, which 
debtor did not pay at the day appointed, the 


charges a person, already in prison, in execu. 
pledge should become the absolute property | tion at the suit of the person who arrested 
eee Tis, bowever,. was abol- | iim, 2 Cuit. Archb. Pr. (12th Hd.) 1208. 
ished by a law of Constantine. Cod. 8, 35, 
8. See Dig. 18,3; Mackeld. Rom. Law,| COMMIXTTIO. In the civil law. The 
RS 447, 461; 2 Kent, Comm. 583. mixing together or confusion of things, dry 
orsolid, belonging to different owners, as dis- 
COMMIT. In practice. To send a per- | tinguished from cony‘usio, which has relation 
son to prison by virtue of a lawful authority, | to liquids. 
for any crime or contempt. 4 Bl, Comm. 
255, 390; 1 Tidi, Pr. 479, 481. COMMOD STE, | In heater a 
Yo deliver a defendant to the custody of pate loan for use. Ersk. Inst. 8, 1, 20. 
the sheriff or marshal, on his surrender by Closely formed from the Lat. commodatum, 
his bail. 1 Tidd, Pr. 285, 287. | 
Seer eer, In practice, The! COMMORATE A@iia,, Ankh  livite 
Watrant or mitiimus by whieh a court or bie a - — sans eo “ee 
magistrate directs an officer to take a person aie pie tmnt 2 lle om hes 
oT s rd ? . ved ‘ t 
cr act of sending a person to prison by not returned to the lender. Inst. 3, 15, 23 
means of such a warrant or order. 9 N. H. Id. 4, 1, 16. 
204. COMMODATO. In Spanish law. A 
COMMITTEE. In practice. An as- abs Mage by oe one ne me gratui- 
tously to another som : onsuma- 
sembly or beard of persons to whom the ce. Bon io een - - - a * wan 
oe Beene en GE any Matter is period; the same contract as commodatum 
committed or referred by sone court. ‘ i 
An individua] or body to whom others have | tert.) 
delegated or committed a particular duty, or | COMMODATUM. Inthecivillaw. He 
who have taken on themselves to perform it | who lends to another a thing for a definite 


COMMODITIES 


time, fo ba enjoyed and used under certain 
conditions, without any pay or reward, is 
called “commodans;” the person who re- 
ceives the thing is called “eommedatarius,” 
and the contraet is called “commodatum.” 
It differs from locatio and conductio, in this: 
that the use of the thing is gratuitous. Dig. 
13, 6; Inst. 3,2, 14; Story, Bailm. § 221. 


COMMODITIES. Goods, wares, and 
merchandise of any kind; movables; articles 
of trade or commerce. 


Commodum ex injurif sud nemo ha- 
bere debet. Jenk. Cent. 161. No person 
ought to have advantage from his own 
wrong. 


COMMON, As an adjective, this word 
denotes usual, ordinary, accustomed; shared 
among several; owned by several jointly. 


COMMON, 2. An incorporeal heredita- 
ment which consists in a profit which one 
man has in connection with one or more 
others in the land of another. 
82; 10 Wend. 647; 11 Jolins. 498. 

Common, in English law, is an incorporeal 
right which lies in grant, originally com- 
mencing on some agreement between lords 
and tenants, which by time has been formed 
into prescription, and continues good, al- 
though there be no deed or instrument to 
prove the original contract. 4 Coke, 37; 1 
Crabb, Real Prop. p. 258, § 268. 

Common, or a right of common, is a right or 
privilege which several persons have to the prod- 
uce of the lands or waters of another. Thus, 
common of pasture is aright of feeding the beasts 
of one person on the lands of another; common of 
estavers is the right a tenant has of taking neces- 
sary wood and timber fram the woods of the lord 
for fuel, fencing, etc. 10 Wend. 647. 

The word “common” also denotes an unin- 
closed piece of land set apart for public or 
municipal purposes, in many cities and vil- 
lages of the United States. 


COMMON APPENDANT. A right 
annexed to the possession of arable land, by 
which the owner is entitled to feed his beasts 
on the lands of another, usually of the owner 
of the manor of which the lands entitled to 
common are a part. 10 Wend. 648; 2 BI. 
Comm. 33. 


COMMON APPURTENANT. Aright 
of feeding one’s beasts on the jand of an- 
other, (in common with the owner or with 
others,) which is founded on a grant, or a 
prescription which supposes a grant. 1 
Crabb, Real Prop. p. 264, § 277. This kind 
of common arises from no connection of 


230 


12 Serg. & Re | 


COMMON CARRIERS 


tenure, and is agains& common right; if may 
commence by grant within time of memory, 
or, in other words, may be created at the 
present day; it may be claimed ag annexed 
to any kind of land, and may be claimed for 
beasts not commonable, as well as those that 
are. 2 BI. Comm. 33. 


COMMON ASSURANCES. The sey- 
eral modes or instruments of conveyance ess 
tablished or authorized by the law of Eng- 
land. Called “common” because thereby 
every man’s estate is assured to him, 2 Bh. 
Comm. 294, 

The legal evidences of the translation of 
property, whereby every person’s estate is 
assured to him, and all controversies, doubta, 
and difficulties are either prevented or re- 
moved. Wharton. 


COMMON BAIL. In practice. The 
form of entering merely fictitious bail, in 
cases where special bail is not required. A 
species of bail intended only to express the 
appearance of a defendant. 


COMMON BAR. Inpleading. (Other- 
wise called “blank bar.”) A plea to compel 
the plaintiff to assign the particular place 
where the trespass has been committed. 
Steph. Pl. 256. 


COMMON BARRETOR. In criminal 
law. One who frequently excites and stirs 
up groundless suits and quarrels, either at 
law or otherwise. 


COMMON BECAUSE OF VICI- 
NAGE is where the inhabitants of two town- 
ships which lie contiguous to each other have 
usually intercommoned with one another, 
the beasts of the one straying mutually into 
the other’s fields, without any molestation 
from either. This is, indeed, only a permis- 
sive right, intended to excuse what, in strict- 
ness, 13 a trespass in both, and to preventa 
multiplicity of suits, and therefore either 
township may inclose and bar out the other, 
though they have intercommoned time out 
of mind. 2 Bl. Comm. 338; Co. Litt. 122a, 


COMMON BENCH. Tlie English court 
of common pleas was formerly so called. Its 
original tille appears to have been simply 
“The Bench,” but it was designated “Com- 
mon Bench” to distinguish it from the 
“King's Bench,” and because in it were tried 
and determined the causes of common per- 
sons, #, e., causes between subject and sub- 
ject, in which the crown had no interest, 


COMMON CARRIERS. A common 
carrier is one whose regular business or call- 


COMMON CARRIERS 


Ing ft ia to carry chattels for all persona who 
may choose to employ and remunerate him. 
Schouler, Bailm. 297. 

Every one who offers to the public to car- 


‘Ty persons, property, or messages, excepling 


only telegraphic messages, is a common car- 
rier of whatever he thus offers to carry. Civil 
Code Cal. § 2168. 

A commen carrier is one who holds himself out 
to the public to carry persous or freight for hire. 
24 Conn. 479. 

At common law, & common carrier is an insurer 
of the goods intrusted to him, and he is responsible 
for all losses of the same, saye such as are occa- 
sioned by the act of God or the public enemy. 15 
Minn, 279, (Gil. 208,} 

Common carriers are of two kinds,—by 
land, ws owners of stages, stage- wagons, rail- 
road cars, teamsters, cartmen, draymen, and 
porters; and by water, as owners of ships, 


steam-boats, barges, ferrymen, lightermen, | 


2 Kent, Comm. 597. 


COMMON CARRIERS OF PASSEN- 
GERS. Common carriers of passengers are 
such ag undertake for hire to carry all per- 
sons indiiferently who may apply for pas- 
sage. Thomp. Carr. p. 26, n.§ 1. 


COMMON CHASE, In old English law. 
A place where all alike were entitied to hunt 
wild animais. 


COMMON COUNCIL. In American 
law. The lower or more numerous braneh 
of the legislative assembly of a city. 

In English law. The councillors of the 
city of London. The parliament, also, was 
anciently called the “common council of the 
realm.” Fleta, 2, 13. 


COMMON COUNTS. Certain general 
counts or forins inserted in a declaration in 
an action to recover a money debt, not found- 
ed on the circumstances of the individual 
case, bub intended to guard against a possible 
variance, and to enable the plaintiff to take 
alvantage of any ground of liability which 
the proof may disclose, within the general 
scope of the action. In theaction of assump- 
sif, these counts are as follows: For goods 
sold and delivered, or bargained and sold; for 
work dene; for money lent; for money paid; 
for money received to the use of the plaintiff; 
for interest; or for money dus on an account 
stated. 


COMMON DAY. In old English prac- 
tice, An ordinary day in court. Cowell; 
Termes de la Ley. 


COMMON DEBTOR. InScotchlaw. A 
debtor whose effects have been arrested by 


and canal boatmen. 


231 


COMMON INFORMEL 


several creditors. Ir regard to these credit 
ors, he is their common dcebtor, and by this 
term is distinguished in the proceedings that 
take place in the competition. Teil. 


COMMON ERROR. (Lat. communis 
error, g. 0.) An error for which there are 
many precedents. “Common error goeth for 
alaw.” Finch, Law, b. 1, ec. 3, no. 54. 


COMMON FINE. in old English law, 
A certain sum of money which the residents 
in a leet paid to the lord of the leet, other- 
wise called “head silver,” “cert money,” (gq. 
v.,) or “cerlum dete.” Termes de la Ley; 
Cowell. A sum of money paid by the inhab- 
itants of a manor to their lord, towards the 
charge of holding a court leet, Bailey, 
Dict. 


COMMON FISHERY. A fishing 
ground where all persons have a right te 
take fish. Not to be confounded witb 
“common of fishery,” as to which see Com- 
MON OF PISCARY. 


COMMON FORM. A will is said te 
be proved in common form when the ex- 
ecutor proves it on his own oath; as distin- 
guished from “proof by witnesses,” which is 
necessary when the paper propounded as a 
will ig disputed. 


COMMON HALL. A court in the city 
of London, at which all the citizens, or such 
as are free of the city, have a right te ut- 
tend. 


COMMON HIGHWAY. By this term 
is meant a road to be used by the community 
at large for any purpose of transit or tratiic. 
Ham. N. P. 289. 


COMMON IN GROSS, OR Al 
LARGE. A species of common which is 
neither appendant nor appurtenant to land, 
but is annexed to 4 man’s person, being 
granted to him and his heirs by deed; or it 
may be claimed by prescriptive right, as by 
a parson of a chureh or the like corporation 
sole. 2 Bl. Comm. 04, It is a separate in- 
heritanece, entirely distinct from any other 
landed property, vested in the person to 
whom the common right belongs. 2 Steph. 
Comm. 6. 


COMMON INFORMER, 
prosecutor, A person who habitually fer- 
rets out crimes and offenses and lays inior- 
ruation thereof before the ministers of justice, 
in order to set a prosecution on foot, not be- 
cause of his office or any special duty in the 
matter, but for the sake of tha share of the 


D 


E 


F 


H 


K 


A common L 


COMMON INTENDMENT 


fine or penalty which the law allots to the in- 
former in certain cases. 


COMMON INTENDMENT. The nat- 
ural and usual sense; the common meaning 
or understanding; the plain meaning of any 
writing as apparent on its face without 
straining or distorting the construction. 


COMMON INTENT. 
given to words. 


COMMON JURY. In practice. The 
ordinary kind of jury by which issues of fact 
are generally tried, as distinguished froma 
special jury, (q. v.) 


COMMON LAW 1. As distinguished 
from the Roman law, the modern civil law, 
the canon law, and other systems, the com- 
mon law is that body of law and juristic theory 
which was originated, developed, and formu- 
lated and is administered in England, and 
has obtained among most of the states and 
peoples of Anglo-Saxon stock. 

2. As distinguished from law created by 
the enactment of legislatures, the common 
law comprises the bedy of those principles 
and rules of action, relating to the govern- 
ment and security of persons and property, 
which derive their authority solely from 
usages and customs of immemorial antiquity, 
or from the judgments and decrees of the 
courts recognizing, aflirming, and enforcing 
such usages and customs; and, in this sense, 
particularly the ancient unwritten law of 
England. 

3. As distinguished from equity law, it is 
a body of rules and principles, written or un- 
written, which are of fixed and immutable 
authority, and which must be applied to con- 
troversies rigorously and in their entirety, 
and cannot be modified to suit the peculiari- 
ties of a specific case, or colored by any judi- 
cial diseretion, and which rests confessedly 
upon custom or statute, as distinguished 
from any claim to ethical superiority. 

4. As distinguished from ecclesiastical 
law, it is the system of jurisprudence admin- 
istered by the purely secular tribunals. 

5. As concerns its force and authority in 
the United States, the phrase designates that 
portion of the common law of England (in- 
eluding such acts of parliament as were ap- 
plicable) which had been adopted and was in 
force here at the time of the Revolution. 
This, so far as it has not since been expressly 
abrogated, is recognized as an organic part 
of the jurisprudence of most of the United 
States. 

6. In a wider sense than any of the fore- 


The natural sense 


232 


Hoenn eee ee ee ee ee a_i nnn nnn ra nnREERE cURL In 


COMMON OF PISCARY 


going, the “common law” may designate al] 
that part of the positive law, juristic theory, 
and ancient custom of any state er nation 
which is of general and universal application, 
thus marking off special or local rules or cus. 
toms. 


COMMON-LAW PROCEDURE ACTS, 
Three acts of parliament, passed in the years 
1852, 1854, and 1860, respectively, for the 
amendment of the procedure in the common. 
law courts. The common-law procedure act 
of 1852 is St. 15 & 16 Vict. c. 76; that of 
1854, St. 17 & 18 Vict. c. 125, and that of 
1860, St. 28 & 24 Vict. ¢, 126. Mozley & 
Whitley. 


COMMON LAWYER. A lawyer learned 
in the common law. 


COMMON LEARNING. Familiarlaw 
or doctrine. Dyer, 278, 33, 


COMMON NUISANCE. One which 
affects the public in general, and not merely 
some particular person. 1 Hawk. P. C, 197. 
See NUISANCE, 


COMMON OF DIGGING. Commonof 
digging, or common in the soil, is the right 
to take for one’s own use part of the soil or 
minerals in another’s Jand; the most usual 
subjects of the right are sand, gravel, stones, 
and clay. It is of a very similar nature ta 
common of estovers and of turbary. Elton, 
Com. 109. 


COMMON OF ESTOVERS. A liberty 
of taking necessary woud for the use or fur- 
niture of a house or farm from off another's 
estate, in common with the owner or with 
others. 2Bl.Comm.35. It may be claimed, 
like common of pasture, either by grant or 
prescription, _ 2 Steph. Comm. 10. 


COMMON OF FOWLING. In some 
parts of the country a right of taking wild 
animals (such as conies or wildfowl) from 
the jand of another hus been found to exist; 
in the case of wildfewl, it is called a “eom- 
mon of fowling.” Elton, Com, 118, 


COMMON OF PASTURE. The right 
or liberty of pasturing one’s cattle upon 
another man’s land. It may be either ap- 
pendant, appurtenant, in gross, or because 
of vicinage. 


COMMON OF PISCARY, or FISH- 
ERY. The right or liberty of fishing in 
another man’s water, in common with the 
owner or with other persons. 2 Bl, Comm. 
34, A liberty or right of fishing in the water 
covering the soil of another person, or in a 


COMMON OF SHACK 


giver running through another’s land. 3 
Kent, Comm. 409. It is quite different from 
acommon fishery, with which, however, itis 
frequently confounded, 


COMMON OF SHACK. A species of 
eommon by vicinage prevailing in the coun- 
ties of Norfelk, Lincoln, and Yorkshire, in 
Enzland; being the right of persons occupy- 
ing Jands lying together in the same common 
field to turn out their cattle after harvest to 
feed promiscuously in that field. 2 Steph. 
Comm. 6, 7; 5 Coke, 63. 


COMMON OF TURBARY. Common 
of turbary, in its modern sense, is the right 
of taking peat or turf from the waste land of 
another, for fuel in the commoner’s house. 
Williams, Common, 187. 


Common opinion is good authority in 
faw. Co, Litt. 186a; 8 Barb. Ch. 528, 577. 


COMMON PLACE. Common pleas. 
Phe English court of common pleas is some- 
limes so called in the old books, 


COMMON PLEAS. The rame of a 
gout of record having general original juris- 
diction in civil suils. 

Common causes or suits, A term ancientiy 
used to denote civil actions, or those depend- 
ing between subject and subject, ag distin- 
guished from pleas of the crown. 


COMMON PLEAS, THE COURT OF. 
In English law. (So called because its orig- 
inal jurisdiction was to determine controyer- 
sies between subject and subject.) One of 
the three superior courts of common law at 
Westminster, presided over by a lord chief 
justice and five (formerly four, until 31 & 32 
Vict. ¢. 125, § 11, subsec. 8) puisné judges. 
it was detached from the king’s court (aula 
regis) as early as the reignof Richard [., and 
the feurteenth clause of IMegnea Charta 
enacted that it should not follow the king’s 
court, but be held in some certain place. Its 
jurisdiction was altogether confined to civil 
matters, having no cognizance in criminal 
cases, and was concurrent with that of the 
gileen’s bench and exchequer in personal 
actions and ejechinent. Wharton. 


COMMON PRAYER. The liturgy, or 
public form of prayer prescribed by the 
Church of England to be nsed in all churches 
and chapels, and which the clergy are en- 
joined to use under a certain penalty. 


COMMON RECOVERY. In convey- 
ancing. A species of common assurance, or 
mode of conveying lands by matler of ree- 


233 


COMMON VOUCHER 


| ord, formerly in frequent use in England. It 


was in the nature and form of an action at 
law, carried regularly through, and ending 
in a recovery of the lands against the ten- 
ant of the freehold; which recovery, being a 
supposed adjudication of the right, bound all 
persons, and vested a free and absclute fes- 
simple in the recoverer. 2 Bl. Comm. 357. 
Common recoveries were abolished by the 
statute 3 & 4 Wm. LV. ¢. 74. 


COMMON SANS NOMBRE. Com- 
mon without number, that is, without lmit 
ag to the number of cattle which may be 
turned on; otherwise called “common with- 
out stint.” Bract. fols. 535, 2226; 2 Steph. 
Comm. 6, 7; 2 Bl. Comm. 34. 


COMMON SCHOOLS. Schools main- 
tained ab the public expense and adminis- 
tered by a bureau of the state, district, or 
municipal government, for the gratuitous 
aducation of the children of all citizens with- 
out distinction. 


COMMON SCOLD. One who, by the 
practice of frequent scolding, disturbs the 
neighborhood. Bish. Crim. Law, § 147. A 
quarrelsome, brawling, vituperative person, 

COMMON SEAL. A seal adopted and 
used by a corporation for authenticating its 


| corporate acts and executing legal instru- 


ments. 


COMMON SENSE. Sound practical 
judgment; that degree of intelligence and 
reason, as exercised upon the relations of 
persons and things and the ordinary affairs 
of life, which is possessed by the generality 
of mankind, and which would sutflice to di- 
rect the conduct and actions of the individ- 
ual ina manner to agree with the behavior 
of ordinary persons. 


COMMON SERJEANT. A jedicial 
officer attached to the corporation of the city 
of London, who assists the recorder in dis- 
posing of the criminal business at the Old 
Bailey sessions, or central criminal court. 
Brown. 


COMMON, TENANTS IN. See Ten- 
ANTS 1N CoMMON. 
COMMON TRAVERSE, See Tray- 


ERSE, 


COMMON YOUCHEE, In common 
recuveries, the person who is vouched to 
warranty. In this fictitious proceeding the 
crier of the court usually performs the office 
of acummeon vouchee. 2 Bl. Comm. 358; 2 
Bouvy,. Inst. n. 2093. 


COMMON WEAL 


COMMON WEAL. 
mon good or welfare. 


COMMONABLE. Entitled to common. 
Commonable beasts are either beasts of the 
plow, as horses and oxen, or such as ma- 
nure the land, as kine and sheep. Deasts 
not commonable are swine, goats, and the 
like. Co. Litt. 122¢; 2°Bl. Comm. 33, 


COMMONAGH. In old decds. 
right of common. See COMMON. 


COMMONALTY. In English law. 
The great body of citizens; the mass of the 
people, excluding the nobility. 

In American law. The body of people 
composing a municipal corporation, exclud- 
Ing the corporate officers, 


COMMONANCEH. The commoners, or 
tenants and inhabitants, who have the right 
of common or commoning in open field. 
Cowell. 


COMMONERS. In English law. Per- 
sons having a right of common. So called 
because they have a right to pasture on the 
waste, in common with the lord. 2H. BL. 
389. 


COMMONS. 1. The class of subjects in 
Great Britain exclusive of the royal family 
and the nobility. They are represented in 
parliament by the house of commons, 

2. Partof the denesneland of a manor, (or 
land the property of which was in the lord, ) 
which, being uncultivated, was termed the 
“Jord’s waste,” and served for public roads 
and for common of pasture to the lord and his 
tenants. 2 Bl. Comm. 90. 


COMMONS HOUSE OF PARLIA- 
MENT. In the English parliament. The 
lower house, so called because the commons 
of the realm, that is, the knights, citizona, 
and burgesses returned to parliament, repre- 
senting the whole body of the commons, sit 
there. 


COMMONTY. In Scotch law. Land 
possessed in common by different proprietors, 
or by those having acquired rights of servi- 
tude. Bell. 


COMMONWEALTH. The public or 
common weal or welfare. This cannot be 
regarded as a teclinical term of public law, 
though often used in political science. It gen- 
erally designates, when so employed, a re- 
publican frame of government,—one in 
which the welfare and rights of the entira 
mass of people are the muin consideration, 


The public or com- 


The 


254 


ee ee ee eee SS — 


COMMUNE PLACITUM 


rather than the privileges of a class or the 
will of a monarch; or it may designate the 
body of citizens living under such a govera- 
ment. Sometimes it may denote the corpo- 
rate entity, or the government, of a jural so- 
ciety (or state) possessing powers of sel[-goy- 
ernment in respect of its immediate concerns, 
but forming an integral part of a larger gov- 
ernment, (or nation.) In this latter sense, it 
is the official title of several of the United 
States, (as Pennsylvania and Massachusetts, ) 
and would be appropriate tothemali. Inthe 
former serse, the word was used to designate 
the English government during the protect- 
orate of Cromwell, See GOVERNMENT; Na- 
TION; STATE. 


COMMORANCY. The dwelling in any 
place as an inhabitant; which consists in 
usually lying there. 4 Bl. Comm. 273. In 
American law it is used to denote a mere 
temporary residence. 19 Pick. 247, 248. 


COMMORANT. Staying or abiding; 
dwelling temporarily in a place, 


COMMORIENTES. Several persons who 
perish at the same time in consequence of the 
same calamity. 


COMMORTH, or COMORTH. A con. 
tribution which was gathered at marriages, 
and when young priests said or sung the first 
masses. Prohibited by 26 Hen. VIII. ec. 6, 
Cowell. 


COMMOTE. Half a cantred or hundred 
in Wales, containing fifty villages. Also 4 
great seignory or lordship, and may include 
one or divers manors. Co. Litt. 5. 


COMMUNE. A self-governing town 01 
village. The name given to the committee 
of the people in the French revolution of 
1793; and again, in the revolutionary upris- 
ing of 1871, it signified the attempt to estab- 
lish absolute self-government in Paris, or the 
mass of those concerned inthe attempt. In old 
French law, it signified any municipal cor- 
poration. And in old English law, the com- 
monalty or commen people. 


COMMUNE CONCILIUM REGNI. 
The common council of the realm. One of 
the names of the English parliament. 


COMMUNE FORUM. ‘The common 
place of justice. The seat of the principal 
courts, especially those that are fixed. 

COMMUNE PLACITUM. In old En- 


glish law. A common plea or civil action, 
such as an action of debt. 


COMMUNE VINCULUM 2 


COMMUNE VINCULUM. A common 
or mutual bond. Applied to the common 
stock of consanguinity, and to the feodal 
bond of fealty, as the common bond of union 
between lord and tenant. 2 Bl. Comm. 250; 
3 Bl. Comm. 250, 


COMMUNI CUSTODIA. In English 
law. An obsolete writ which anciently lay 
for the lord, whose tenant, holding by knight’a 
service, died, and left his eldest son under 
age, against a stranger that entered the land, 
and obtained the ward of the body. Reg. 
Orig. 161. 


COMMUNI DIVIDUNDO. Inthecivil 
law. An action which lies for those who 
have property in common, to procure a divis- 
jun. Lt lies where parties hold land in com- 
mun but not in partnership. Calvin. 


COMMUNIA. Inold Englishlaw, Com- 
mon things, res communes. Such asrunning 
water, the air, the sea, and seashores. LBract. 
fol. 7b. 


COMMUNIA PLACITA. In old En- 
glish law. ‘Common pleas or actions; those 
bebween one subject and another, as distin- 
guished from pleas of the crown. 


COMMUNIA PLACITA NON TEN- 
ENDA IN SCACCARIO. An ancient 
writ directed to the treasurer and barons of 
the exchequer, forbidding them to hold pleas 
between common persons (Z. e., not debtors 
to the king, who alone originally sued and 
were sue there) in that court, where neither 
of the parties belonged to the same, Reg. 
Orig. 187. 


COMMUNI. In feudal law on the con- 
tinent of Europe, this name was given to 
towns enfranchised by the crown, about the 
twelfth century, and formed into free corpo- 
rations by grants called “charters of com- 
munity.” 


COMMUNIBUS ANNIS. In ordinary 
years; on the annual average. 


COMMUNICATION. Information giv- 
en; the sharing of knowledge by one with 
another; conference; consultation or bar- 
gaining preparatory to making a contract. 
Ajso intercourse; connection. 

In French law. ‘The production of a 
merchant’s books, by delivering them either 
to a person designated by the court, or to his 
adversary, to be examined in all their parts, 
and as shall be deemed necessary to the suit. 
Arg. Fr. Mere. Law, 552. 


35 


COMMUNITY 


COMMUNINGS. In Seotch law. The 
negotiations preliminary to the entering inte 
a contract. 


COMMUNIO BONORUM. Inthe civil 


| law. A term signifying a community (gq. 2.) 


of goods. 


COMMUNION OF GOODS. InSeotch 
law. The right enjoyed by married persons 
in the movable goods belonging to them. 
Bell. 


Communis error facit jus. Common 
error makes law. 4 Inst. 240; Noy, Max. p. 
37, max. 27, Common error goeth fora law. 
Finch, Law, b. 1, e. 3, no. 54, Common er- 
ror sometimes passes currentaslaw. Broom, 
Max. 139, 140. 


COMMUNIS OPINIO. Common opin- 
ion; general professional opinion. Accord- 
ing to Lord Coke, (who places it on the 
footing of observance or usage,) common 
opinion is good authority in law. Co. Litt. 
186a. 


COMMUNIS PARIES. In the civil 


law. A common or party wall. Dig. 8, 2, 
8, 13. 
COMMUNIS RIXATRIX,. In old En- 


glish law. 
Comm. 168. 


COMMUNIS SCRIPTURA. In old 
English law, A common writing; a writing 
common to both parties; achirograph. Glan. 


A common scold, (g.v.) 4 BI. 


| lib. 8, c 1. 


COMMUNIS STIPES. A common 
stock of descent; a common ancestur, 


COMMUNISM. A name given to pro- 
posed systems of life or social organization 
based upon the fundamental principle of the 
non-existence of private property and of a 
community of goods in a society. 


An equality of distribution of the physical 
means of life and enjoyment as a transition toa 
still higher standard of justice that all should 
work according to their capacity and receive ac 
cording to their wants. 1 Mill, Pol. Ec. 248. 


COMMUNITAS REGNI ANGLIA, 
The general assembly of the kingdom of 
England. One of the ancient names of the 
English parliament. 1 Bl Comm, 148, 


COMMUNITY. A society of people liv- 
ing in the same place, under the same laws 
and regulations, and who have common 
rights and privileges. 

In the civil law. 
politic. Dig. 3, 4 


A corporation or budy 


COMMUNITY 


In French law. A species of partner- 
ship which a man and a woman contract 
when they are lawfully married to each 
other. 


COMMUNITY PROPERTY. Com- 
munity property is property acquired by hus- 
band and wife, or either, during marriage, 
when not acquired as the separate property 
of either. Civil Code Cal. § 687. 

This partnership or community consists of 
the profits of all the eitests of which the hus- 
band has the administration and enjoyment, 
either of right or in fact, of the produce 
of the reciprocal industry and labor of both 
husband and wife, and of the estates which 
they may acquire during the marriage, either 
by donations made jointly to them both, or 
by purchase, or in any other similar way, 
even although the purchase be only in the 
name of one of the two, and not of both, be- 
cause in that case the period of time when 
the purchase is made is alone attended to, 
and not the person who made the purchase. 
Civil Code La. art. 2402. 


COMMUTATION. In criminal law. 
Change; substitution. The substitution of 
one punishment for another, after conviction 
of the party subject to it. The change of a 
punishment from a greater to a less; as from 
hanging to imprisonment. 

Commutation of a punishment is nota con- 

‘ditional pardon, but the substitution of a 
lower for a higher grade of punishment, and 
is presumed to be for the culprit’s benefit. 
31 Ohio St. 206; 1 Nev. 321. 


In civil matters. The conversion of the 
right to receive a variable or periodical pay- 
ment into the right to receivea fixed or gross 
payment. Commutation may be effected by 
private agreement, but it is usually done 
under a statute. 


COMMUTATION OF TITHES.  Sig- 
nifies the conversion of tithes into a fixed 
payment in money. 


COMMUTATIVE CONTRACT. In 
the civil law. One in which each of the con- 
tracting parties gives and receives an equiva- 
lent. 

Commutative contracts are those in which 
what is done, given, or promised by one 
party is considered as equivalent to, or a con- 
sideration for, what is done, given, or prom- 
ised by the other. Civil Code La. art. 1768, 


COMMUTATIVE JUSTICE. See Jus- 
TICK. 


238 


COMPANY 


COMPACT. An agreement or contract. 


| Usually applied to conventions between na- 


| tions or sovereign states. 

A compact is a mutual consent of parties 
concerned respecting some property or right 
that is the object of the stipulation, or some- 
thing that is to be done orforborne. 4 Gill 
&J.1. 

The terms “compact” and “contract” are 
synonymous. 8 Wheat. 1, 92. 


COMPANAGE. AIl kinds of food, ex- 
cept bread and drink. Spelman. 


COMPANIES CLAUSES CONSOLI- 
DATION ACT, An English statute, (8 
Vict. c. 16,) passed in 1845, which consoli- 
dated the clauses of previous laws still re- 
maining in foree on the subject of public 
companies. It is considered as incorporated 
into all subsequent acts authorizing the exe- 
cution of undertakings of a publie nature by 
companies, unless expressly excepted by such 
later acts. Its purpose is declared by the pre- 
amble to be to avoid repeating provisions as 
to the constitution and management of the 

| companies, and to secure greater uniformity 
in such provisions, Wharton. 


COMPANION OF THE GARTER. 
One of the knights of the Order of the Garter, 


COMPANIONS. In French law. A 
general term, comprehending all persons who 
compose the crew of a ship or vessel. Poth, 
Mar. Cont. no, 163. 


COMPANY. A society or association of 
persons, in considerable number, interested 
in a common object, and uniting themselves 
for the prosecution of some commercial or 
industrial undertaking, or other legitimate 
business, 

The proper signification of the word “company,” 
when applied to persons engaged in trade, denotes 
those united for the same purpose or in a joint con- 
cern. Itis so commonly used in this sense, or as 
indicating a partnership, that few persous accus- 
tomed to purchase goods at shops, where they are 
sold by retail, would misapprehend that such was 
its meaning. 383 Me. 32. 

Joint stock companies. Joint stock 
companies are those having a joint stock or 
capital, which is divided into numerous 
transierable shares, or consists of transfera- 
ble stock. Lindl. Partn. 6. 

The term is not identical with “partner- 
ship,” although every unincorporated society 
is, in its legal relations, a partnership. In 
common use a distinction is made, the name 
“partnership” being reserved for business 
associations of a limited number of persons 


COMPANY 2 


{usually not more than fonr or five) trading 
undera naine composed of their individual 
names set out in succession; while “com- 
pany” is appropriated as the designation 
of a soviely comprising a larger number of 
persons, with greater capital, and engaged 
in more extensive enterprises, and trading 
under a title not disclosing the names of the 
individuals. 

Sometimes the word is used to represent 
those members of a partnership whose names 
do not appear in the name of the firm. See 
12 Toullier, 97. 


COMPARATIO LITERARUM. Inthe 
civillaw. Comparison of writings, or Land- 
wiitings. A mode of poof allowed in cer- 
tain cases. 

COCMPARATIVE JURISPRUDENCE, 
The study of the principles of legal science 
fy the comparison of various systems of law. 


COMPARATIVE NEGLIGENCE. 
That doctrine in the law of negligence by 
which the negligence of the parties is 
compared, in the degrees of “slight,” 
“ordinary,” and “gross” negligence, and 
a recovery permitted, notwithstanding the 
contributory negligence of the plaintiff, 
when the negligence of the plaintiff is 
slight and the negligence of the defend- 
ant gross, but refused when the plaintiff 
has been guilty of a want of ordinary care, 
thereby contributing to his injury, or when 
the negligence of the defendant is not gross, 
but only ordinary or slight, when compared, 
under the circumstances of the case, with 
the contributory negligence of the plaintiff. 
3 Amer. & Eng. Enc. Law, 867. See 103 Ll. 
512; 115 lll. 358, 3 N. E. Rep. 456; $2 IN. 
198; 1 Shear. & R. Neg. §§ 102,103; Whart. 
Neg. § 334. 


COMPARISON OF HANDWRIT- 
ING. <A comparison by the juxtaposition 
of two writings, in order, by such compari- 
son, to ascertain whether both were written 
by the same person. 

A method of proof resorted to where the 
genuineness of a written document is dis- 
puted; if consists in comparing the hand- 
writing of the disputed paper with that of 
another instrument which is proved or ad- 
mitted to bein the writing of the party sought 
to be charged, in order to infer, from their 
{dentity or similarity in this respecb, that 
they are the work of the same hand. 


COMPASCUUM. Lelonging to com- 
monage. Jus compascuum, the right of 
common of pasture. 


3 


7 


COMPENSATION 


COMPASS, THE MARINER’S. An 
instrument used by mariners to point out the 
course of ashipatsea. It consists of a mag- 
netized steel bar called the “ needle,” attached 
to the under side of a card, upon which are 
drawn the points of the compass, and sup- 
ported by a fine pin, upon which it turns 
freely in a horizontal plane. 


COMPASSING,. Imagining or contriv- 
ing, or plotting. 


COMPATERNITAS. In the canon 
law. <A kind of spiritual relationship con- 
tracted by baptism. 


COMPATERNITY. Spiritual affinity, 
contracted by sponsorship in baptism. 

COMPATIBILITY. Such relation and 
consistency between the duties of two offices 


that they may be held and filled by one per- 
son. 


COMPEAR. In S8cotch law. 


COMPEARANCE. In Scotch practice. 
Appearance; an appearance made for a de- 
fendant; an appearance by counsel. Bell. 


COMPELLATIVUS. An adversary or 
accuser. 


To appear. 


Compendia sunt dispendia. Co. Litt. 
305. Abbreviations are detriments. 


COMPENDIUM. Ano abridgment, syn- 
opsis, or digest. 


COMPENSACION. In Spanish law. 
Compensation; set-off. The extinction of a 
debt by another debt of equal dignity. 


COMPENSATIO. In the civil law. 
Compensation, or set-off. A proceeding re- 
sembling a set-off in the common law, being 
a claim on the part of the defendant to have 
an amount due to him from the plaintiff de- 
ducted from his demand. Dig. 16, 2; Inst. 
4, 6, 30, 39; 3 Bl. Comm. 305. 


COMPENSATIO CRIMINIS. (Set-off 
of crime or guilt.) Inpractice. ‘The plea of 
recrimination in a suit for a divorce; that is, 
that the complainant is guilty of the same 
kind of offense with which the respondent ia 
charged. 


COMPENSATION. indemnificatien; 
payment of damages; making amends; that 
which is necessary to restore an injured party 
to his former position. Anact which a court 
orders to be done, or money which a court 
orders to be paid, by a person whose acts or 
omissions have caused loss or injury to an- 
other, in order that thereby the person dam- 


COMPENSATION e 


aified may receive equal vatue for his loss, or 
be made whole in respect of his injury. 

Also that equivalent in money which is paid 
to the owners and occupiers of lands taken or 
injuriously affected by the operations of com- 
panies exercising the power of eminent do- 
main. ¢ 

In the constitutional provision for “just 
compensation” for property taken under the 
power of eminent domain, this term meansa 
payment in money. Any benefit to the re- 
maining property of the owner, arising from 
public works for which a part has been taken, 
cannot be considered as compensation. 42 
Ala. 88. 

As compared with consideration and damages, 
compensation, in its most careful use, seems to be 
between them. Consideration is amends for some- 
vhing given by consent, or by the owner's choice. 
Damages is amends exacted from a wrong-doer for 
8 tort. Compensation is amends for something 
which was taken without the owner’s choice, yet 
without commission of a tort. Thus, one should 
say, consideralionu for land sold; compensation for 
land taken for arailway; damages for a trespass. 
But such distinctions are notuniform, Land dam- 
ages is a common expression for compensation for 
lands taken for public use. Abbott. 

The word also signifies the remuneration 
or wages given to an employe or officer. But 
it is not exactly synonymous with “salary.” 
See 76 Il]. 548. 

In the civil, Scotch, and French law. 
Recoupment; set-off. The meeting of two 
debts due by two parties, where the debtor 
in the one debt is the creditor in the other; 
that is to say, where one person is both 
debtor and credilur to another, and there- 
fore, to the extent of what is due to him, 
claims allowance out of the sum that he is 
due. Bell; 1 Kames, Eq. 895, 396. 

Compensation is of three kinds,—legal, or by 
operation of law; compensation by way of excep- 
tion, and by reconvention. 16 La. Aun. 181. 


COMPERENDINATIO. In the Roman 
law. The adjournment of a cause, in order 
to hear the parties or their advocates a sec- 
ond time; a second hearing of the parties to 
acause. Calvin. 


COMPERTORIUM. In the civil law. 
A judicial inquest made by delegates or com- 
missioners to find out and relate the truth of 
a cause. 

COMPERUIT AD DIEM. In practice. 
A plea in an action of debt on a bail bond 
that the defendant appeared at the day re- 
quired. 


COMPETENCY. 
dence. 


In the law of evi- 
The presence of those characteris- 


38 


| latter his veracity. 


COMPILATION 


ties, or the absence of those disabilities, 
which render a witness legally fit and quali- 
fied to give testimony in a court of justice. 
The term is also applied, in the same sense, 
to documents or other written evidence. 

Competency differs from credibility. The 
former is a question which arises before con- 
sidering the evidence given by the witness; 
the latter concerns the degree of credit to be 
given to his story. The former denotes the 
personal qualification of the witness; the 
A witness may be com- 
petent, and yet give incredible testimony; ha 
may be incompetent, and yet his evidence, if 
received, be perfectly credible. Competency 
is for the court; credibility for the jury. 
Yet in some cases the term “credible” is used 
as an equivalent for “competent.” Thus, 
in a statute relating to the execution of wills, 
the term “credible witness” is held to mean 
one who is entitled to be examined and to 
give evidence in a court of justice; not nec 
essarily one who is personally worthy of be 
lief, but one who is not disqualified by 
imbecility, interest, crime, or other cause. 1 
Jarm. Wills, 124; 28 Pick. 18. 

In French law. Competency, as applied 
to a court, means its right to exercise juris- 
diction in a particular case. 


COMPETENT AND OMITTED. In 
Scotch practice. A term applied to a ples 
which might have been urged by a party 
during the dependence of a cause, but which 
had been omitted. Bell. 


COMPETENT EVIDENCE. That 
which the very nature of the thing to be 
proven requires, as the production of a writ- 
ing where its contents are the subject of in- 
quiry. 1 Greenl. Ev. § 2; 1 Lea, 504. 


COMPETENT WITNESS. One whois 
legally qualified to be heard to testify in a 
cause, See COMPETENCY. 


COMPETITION. In Scotch practice. 
The contest among creditors claiming ou 
their respective dili gences, or creditors claim. 
ing on their securities, Bell. 


COMPILE. To compile is to copy from 
various authors into one work. HKetween a 
compilation and an abridgment there is a 
clear distinction. A compilation consists of 
selected extracts from different authors; an 
abridgment is a condensation of the views of 
one author. 4 McLean, 306, 314. 


COMPILATION. A literary production, 
composed of the works of others and arranged 
in a methodical manner, 


COMPLAINANT 239 


COMPLAINANT. In practiee. One 
who applies to the courts for legal redress; 
one who exhibits a bill of complaint. This 
‘g the proper designation of one suing in 
equity, though “plaintiff” is often used in 
equity proceedings as well as at law. 


COMPLAINT. In civil practice. In 
those states having a Code of Civil Proced- 
ure, the complaint is the first or initiatory 
pleading on the part of the plaintiff in a civil 
action. It corresponds to the declaration in 
the common-law practice. Code N.Y.§ 141. 

Thecomplaint shallcontain: (1) The titleofthe 
cause, specifying the name of the court in which 
the action is brought, the name of the county in 
which the trial is required to be had, and the names 
of the parties to the action, plaintiff and defend- 
ant. (2) A plain and concise statement of the 
facts constituting a cause of action, without un- 
necessary repetition; and each material allegation 
shall be distinctly numbered. (8) A demand of 
the relief to which the plaintiff supposes himself 
entitled. Ifthe recovery of money be demanded, 
the amount thereof must be stated. Code N. C. 
1863, § 233. 

In criminal law. A charge, preferred 
before a magistrate having jurisdiction, that 
a person named (or an unknown person) has 
committed a specitied offense, with an offer 
to prove the fact, to the end that a prosecu- 
tion may be instituted, It is a technical 
term, descriptive of proceedings before a 
magistrate. 11 Pick. 486. 

The complaint is an allegation, made before 
& proper magistrate, that a person has been guilty 
of a designated public offense. Code Ala, 1886, 
§ 4255. 


COMPLICE. One who is united with 
others in an ill design; an associate; a con- 
federate; an accomplice. 


COMPOS MENTIS. Sound of mind. 
Having use and control of one’s mental fac- 
ulties, 


COMPOS SUI. Having the use of one’s 
limbs, or the power of bodily motion. Si fuit 
ita compos sui quod itinerare potuit de loco 
tr locum, if he had so far the use of his limbs 
as to be alle to travel from place to place, 
Bract. fol. 14d. 


COMPOSITIO MENSURARUM, The 
ordinance of measures. ‘The title of an an- 
cient ordinance, not printed, mentioned in 
the statute 23 Hen, VIII. ¢. 4; establishing 
astandard of measures. I Bl. Comm. 275, 


COMPOSITIO ULNARUM ET PER- 
TICARUM. Thestatuteofells and perches. 
The title of an English statute establishing 
astandard of measures. 1 Bl. Comm. 275. 


COMPOUND 


COMPOSITION. An agreement, made 
upon a sufficient consideration, between an 
insolvent or embarrassed debtor and his 
creditors, whereby the latter, for the sake of 
immediate payment, agree to accept a divi- 
dend less than the whole amount of their 
claims, to be distributed pro rata, in dis- 
charge and satisfaction of the whole, 

“Composition” should be distinguished from 
“accord.” The latter properly denotes an arrange- 
ment between a debtor and a single creditor fora 
discharge of tue obligation by a part payment or 
on different terms. The former designates an ar- 
rangement between a debtor and the whole body 
of bis creditors (or at least a considerable propor- 
tion of them) for the liquidation of their claims by 
the dividend offered. 

In ancient law. Among the Franks, 
Goths, Burgundians, and other barbarous 
pcoples, this was the name given to a sum of 
money paid, a8 satisfaction for a wrong or 
personal injury, to the person harmed, or to 
his family if he died, by the aggressor. It 
was originally made by mutual agreement of 
the parties, but afterwards establislied by 
law, and took the place of private physical 
vengeance, 


COMPOSITION DEED, An agreement 
embodying the terms of a composition be- 
tween a debtor and his creditors. 


COMPOSITION IN BANKRUPTCY. 
An arrangement between a bankrupt and his 
ereditors, whereby the amount he can be ex- 
pected to pay is liquidated, and he is allowed 
to retain his assets, upon condition of his 
making the payments agreed upon. 


COMPOSITION OF MATTER. A 
mixture or chemical combination of ma- 
terials. 


COMPOSITION OF TITHES, or 
REAL COMPOSITION. This arises in 
English ecclesiastical law, when an agree- 
ment is made between the owner of lands and 
the incumbent of a benefice, with the consent 


| of the ordinary and the patron, that the lands 


shall, for the future, be discharged from pay- 
ment of tithes, by reason of some land or 
other real recompense given in lheu and sat- 
isfaction thereof. 2 Bl. Comm. 28; 3 Steph. 
Comm. 129. 


COMPOST. Several sorts of soil or earth 
and other matters mixed, in order to make 
a fine kind of mould for fertilizing lands. 


COMPOTARIUS. In old English iaw. 
A party accounting. Fieta, lib. 2, ¢. 71, § 17. 


COMPOUND. To compromise; to effect 
a composition with a creditor; to obtain dis- 


COMPOUND INTEREST 


chirgs from a debt by the payment of a 
smaller sum. 


COMPOUND INTEREST. Interest 
upon interest, 7. e., when the interest of asum 
ot money is added to the principal, and then 
bears interest, which thus becomes a sort of 
secondary principal. a 


COMPOUNDER. In Louisiana. The 
maker of a composition, generally called the 
“amicable compouniler.” 


COMPOUNDING A FELONY. The 
offense committed by a person who, having 
been directly injured by a felony, agrees with 
the criminal that he will not prosecute him, 
on condition of the latter's making reparation, 
or on receipt of a reward or bribe not to pros- 
ecute, 

The offense of taking a reward for forbear- 
ing to prosecute a felony; as where a party 
robbed takes his goods again, or other 
amends, upon an agreement not to prosecute. 
29 Ark. 801; 4 Steph. Comm. 259. 


COMPRA Y VENTA, In Spanish law. 
Purchase and sale, 


COMPRINT. A surreptitious printing 
of another book-seller’s copy of a work, to 
make gain thereby, which was contrary to 
common law, and is illegal. Wharton. 


COMPRIVIGNI. In the civillaw. Chil- 
dren by a former marriage, (individually 
called “privigni,” or “privigne,”) consid- 
ered relatively to each other. Thus, the son 
of a husband by a former wife, and the 
daughter of a wife by a former husband, are 
the comprivigni of each other. Inst, ], 
10, 8. 


COMPROMISE. An arrangement ar- 
rived at, either in court or out of court, for 
settling a dispute upon what appears to the 
parties to be equitable terms, haying regard 
to the uncertainty they are in regarding the 
facts, or the law and the facts together. 
Brown. 

An agreement between two or more persons, 
who, for preventing or putting an end toa lawsuit, 
adjust their diflculties by mutual consent in the 
manner which they agree on, and which every one 
of them prefers to the hope of gaining, balanced 
by the danger of losing. 4 La. 456, 

In the civil law. An agreement where- 
oy two or more persons mutually bind them- 
selves to refer their legal dispute to the de- 
cision of a designated third person, whu is 
termed: “umpire” or “arbitrator.” Dig, 4, 
8; Mackeid. Rom. Law, § 471. 


240 


COMPUTATION 


Compromissarii sunt judicea. Jenk. 
Cent. 128. Arbitrators are judges. 


COMPROMISSARIUS, In the civil 
law. Ant arbitrator. 


COMPROMISSUM. A submission to 
arbitration. 


Compromissum ad similitudinem ju- 
diciorum redigitur,. A compromise is 
brought into affinity with judgments. 9 Cush. 
571. 

COMPTE ARRETE. Fr. A compte 
arrété is an account stated in writing, and ac- 
knowledged to be correct on its face by the 


party against whom itis stated, 9 La. Ann, 
484, 
COMPTER. In Scotch law. An ac- 


counting party. 


COMPTROLLER. <A public officer of a 
stale or municipal corporation, charged with 
certain duties in relation to the fiscal affairs 
of the same, principally to examine and audit 
the accounts of collectors of the public mon- 
ey, to keep records, and report the financial 
situation from time totime. There are also 
officers bearing this name in the treasury de. 
partment of the United States. 


COMPTROLLER IN BANKRUPTCY. 
An officer in England, whose duty it is to re- 
ceive from the trustee in each bankruptcy 
his accounts and periodical statements show- 
ing the proceedings in the bankruptcy, and 
also to call the trustee to account for any 
misfeasance, neglect, or omission in the dis- 
charge of his duties. Robs. Bankr. 13; 
Bankr. Act 1869, § 55. 


COMPTROLLERS OF THE HANA- 
PER. In English law. Officers of the 
court of chancery; their offices were abol- 
ished by 5 & 6 Vict. ce. 103, 


COMPULSION. Constraint; objective 
necessity. Forcible inducement to the com- 
mission of an act. 


COMPULSORY. In ecclesiastical pro- 
cedure, @ compulsory is a kind of writ to 
compel the attendance of a witness, to un- 
dergo examination. Phillim. Eee. Law, 
1258. 


COMPURGATOR. One of severa 
neighbors of a person aceused of a crime, o1 
charged as a defendant in a civil action, whe 
appeared and swore that they believed him 
on his oath, 3 BJ. Comm. 341. 


COMPUTATION. The act of comput- 
ing, nuwbering, reckoning, er estimating, 


COMPUTUS 


¢ account or estimation of time by rule of 
law, as distinguished from any arbitrary 
construction of the parties. Cowell. 


COMPUTUS. A writ to compel a 
guardian, bailiff, receiver, or accountant to 
yiekl up his accounts. It is founded on the 
statute Westm. 2, c. 12; Reg, Orig. 135. 


COMTH. Fr. A count or earl. In 
the ancient French law, the comte was an 
officer having jurisdiction over a particular 
district or territory, with functions partly 
military and partly judicial. 


CON BUENA FE. 
With (or in) good faith. 


CONACRE. 


[n Spanish law. 


In Irish practice. The 
worked out in labor at a money valuation. 
Wharton. 


Conatus quid sit, non definitur in 
jure. 2 Bulst. 277. What an attempt is, is 
not defined in law. 


CONCEAL. To hide; secrete; withhold 
from the knowledge of others. 

The word “conceal,” according to the best 
lexicographers, signifies to withhold or keep 
secret mental facts from another’s knowledge, 
as well as to hide or secrete physical objects 
from sight or observation. 57 Me. 339. 


CONCEALED. The term “concealed” 
fg not synonymous with “lying in wait.” If 
& persun conceals himself for the purpose of 
shooting another unawares, he is lying in 
wail; but a persun may, while concealed, 
shoot another without committing the crime 
of murder. 55 Cal. 207. 


The term “concealed weapons” means weapons 
willfully or knowingly covered or kept from sight. 
at Ala. 387. 


CONCHALERS. In old English law. 
Such as find out concealed lands; that is, 
lands privily kept from the king by common 
persons having nothing to show for them, 
They are called “a troublesome, disturbant 
sort of men; turbulent persons.” Cowell. 


CONCEALMENT. The improper sup- 
pression or disguising of a fact, circumstance, 
or qualification which rests witliin the knowl- 
elge of one only of the parties to a con- 
tract, but which ought in fairness and good 
faith to be communicated to the other, 
whereby the party so concealing draws the 
other into an engagement which he would 
not make but for his ignorance of the fact 
concealed. 

A neglect to communicate that which 4 

AM. DICT, LAW—16 


241 


CONCESSION 


party knows, and ought to communicate, is 
called a “concealment.” Civil Code Cul 
§ 2561. 


The terms “misrepresentation” and “conceal- 
ment” have a known and definite meaning in ths 
law of insurance. Misrepresentation is the state- 
ment of something as fact which is untrue in 
fact, and which the assured states, knowing it to 
be not true, with an intent to deceive the under- 
writer, or which he states positively as true, with- 
out knowing it to be truc, and which has a tend- 
ency to mislead, such fact in either case being 
material tothe risk, Concealmentis the designed 
aud intentional withholding of any fact material 
to the risk, which the assured, in honesty and 
good faith, ought to communicate to the under- 
writer; mere silence on the part of the assured, 
especially as to some matter of fact which he does 
not consider it important for the underwriter to 


: : | know, is not to ve considered as such concealment, 
payment of wages in land, the rent being | 


If the fact so untruly stated or purposely sup- 
pressed is not material, that is, if the knowledge 
or ignorance of it would not naturally influence 
the judgment of the underwriter in making the 
contract, or in estimating the degree and character 
of the risk, or in fixing the rate of the premium, it 
is not a “misrepresentation” or “concealment, ” 
within the clause of the conditions annexed to 
policies. 12 Cush, 416. 


CONCEDO. Igrant. A word used in 
old Anglo-Saxon grants, and in statutes 
merchant. 


CONCEPTUM,. In the civil law. A 
theft (furtum) was called “eonceptum,” 
when the thing stolen was searched for, and 
found upon some person in the presence of 
witnesses. Inst. 4, 1, 4. 


CONCEHSSI. Lat. Ihave granted. At 
common law, in a feoffment or estate of in- 
heritance, this word dees not imply a war- 
ranty; it only creates a covenant in a lease 
for years. Co. Lilt. s84a,; 2 Caines, 194. 


CONCESSIMUS. Lat. We have 
granted. A term used in conveyances, the 
effect of which was to create a joint covenant 
on the jiart of the grantors. 


CONCHSSIO. In old English law. A 
grant. One ofthe old common assurances, 
or forms of conveyance. 


Concessio per regem fleri debet do 
certitudine. 9 Coke, 46. <A grant by the 
king ought to be made from certainty. 


Coneessio versus econecedentem latam 
interpretationem habere debet. A grant 
ought to have a broad interpretation (to be 
liberally interpreted) against the grantor, 
Jenk. Cent. 279. 


CONCESSION. A grant; ordinarily ap- 
plied to the grant of specific privileges by a 


G 


H 


CONCESSIT SOLVERE 


government; French and Spanish grants in 
Louisiana. 


CONCESSIT SOLVERE. (He granted 
and agreed to pay.) In English law. An 
action of debt upon a simple contract. It 
lies by custom in the mayor’s.court, London, 
and Bristol city court. . 


CONCESSOR. In old English Jaw. 
grantor. 


CONCESSUM. Accorded: conceded. This 
term, frequently used in the old reports, sig- 
nifies that the court admitted’ or assented to 
a point or proposition made on the argu- 
ment. 


CONCESSUS. A grantee. 
CONCILIABULUM. A council house. 


CONCILIATION. In French law. The 
formality to which intending litigants are 
subjected in cases brought before the juge de 
pais. The judge couvenes the parties and 
endeavors to reconcile them. Should he not 
succeed, the case proceeds. In criminal and 


A 


commercial cuses, the preliminary of concili- | 


ation does not take place, 
Law, 552. 


CONCILIUM. A council. Also argu- 
ment in a cause, or the sitting of the court to 
hear argument; a day allowed to a defendant 
to present his argument; an imparlance. 


CONCILIUM ORDINARIUM. In An- 
glo-Norman times. An executive and resid- 
uary jadicial committee of the Aude Regis, 
(g- ¥-) 

CONCILIUM REGIS. Anancient En- 
glish tribunal, existing during the reigns of 
Edward L. and Edward II., to which was re- 


Arg. Fr. Mere. 


ferred cases of extraordinary difficulty. Co. 
Litt. 304. 
COTMCIONATOR. In old records. A 


éommon council man; a freeman called to a 
legislative hall or assembly. Cowell. 


CONCLUDE. 
estop; to prevent. 


CONCLUDED. Ended; determined; es- 
topped; prevented from. 


CONCLUSION, The end; the termina- 


To finish; determine; to 


closes. The conclusion of a declaration or 
complaint is all that part which follows the 
statement of the plaintiff's cause of action. 
The conclusion of a plea is its final clause, in 
which the defendant either “puts himself 
upon the country” (where a material aver- 


242 


i 


CONCORD 


ment of the declaration is traversed and is- 
sue tendered) or offers a verification, which 
is proper where new matter is introduced. 

In trial practice. It signifies making 
the final or concluding address to the jury or 
the court. ‘This-is, in general, the privilege 
of the party who has to sustain the burden of 
proof, 

Conclusion also denotes a bar or estoppel; 
the consequence, as respects the individual, of 
a judgment upon the subject-matter, or of hig 
confession of a matter or thing which the 
law thenceforth forbids him to deny. 


CONCLUSION AGAINST THE 
FORM OF THE STATUTE. The prop- 
er form for the conclusion of an indictment 
for an offense created by statute is the tech- 
nical phrase “against the form of the statute 
in such case made and provided;” or, in Lat- 
in, contra formam statuti. 


CONCLUSION TO THE COUNTRY. 
In pleatling. The tender of an issue to be 
tried by jury. Steph. Pl. 230. 


CONCLUSIVE. Shutting up a matter; 
shutting out all further evidence; not admit. 
ting of explanation or contradiction; putting 
an end to inquiry; final; decisive. 


CONCLUSIVE EVIDENCE, Evidence 
which, in its nature, does not admit of ex- 
planation or contradiction; such as what is 
ealled “eertain circumstantial” svicence, 
Burrill, Cire. Ev. 89. 

Evidence which, of itself, whether contra- 
dicted or uncontradicted, explained or unex- 
plained, is sufficient to determine the matter 
atissue. 6 Lond. Law Mag. 373. 


CONCLUSIVE PRESUMPTION. A 
rule of law determining the quantity of evi- 
dence requisite for the support of a particular 
averment which is not permitted to be over- 
come by any proof that the fact is otherwise, 
1 Greenl, Iv. § 15. 


CONCORD. In the old process of levy- 
ing a fine of lands, the concord was an agree- 
ment between the parties (real or feigned) in 
which the deforciant (or he who keeps the 
other out of possession) acknowledges that 
the lauds in question are the right of com. 


plainant; and, from the acknowledgment or 
tion; the act of finishing or bringing to a | 


admission of right thus made, the party who 
levies the fine is called the “cognizor,” and 
the person to whom it is levied the “cognizee,” 
2 Bl. Comm. 350. 

The term also denotes an agreement be- 
tween two persons, one of whom has a righs 
of action against the other, settling what 


6S 
i 


CONCORD 


amends shall be made for the breach or 
wrong; a compromise or an accord. 

In old practice. Anagreement between 
two or more, upon a trespass committed, by 
way of atnends or satisfaction forit. Plowd. 


5, 6, 3. 


Concordare leres legibus est optimus 
interpretandi modus. To make lawsagree 
with laws is the best mode of interpreting 
them. Halk. Max. 70, 


CONCORDAT. In public law. A 
compact or convention between two or more 
Independent governtnents. 

Anxgreement made by a temporal sover- 


matters. 
f In French law. A comprornise effected 
; by a bankrupt with his creditors, by virtue 
b of which he engages to pay within a certain 


time a certain proportion of his debts, and by 
which the creditors agree to discharge the 

f whole of thelr claims in cousideration of the 
aume, Arg. Fr. Mere. Law, 553, 


CONCORDIA. Lat. In old English 
law, An agreement, orconcord. Fleta, lib. 
5, ¢.3,§5. The agreement or unanimity of 
ajury. Compeliere ad coneordiam. Fleta, 
lib, 4, c. 9, § 2. 


CONCORDIA DISCORDANTIUM 
CANONUM. The harmony of the discord- 
antl canons, 
constitutions made by Gratian, an Italian 
monk, A. I). 1151; more commonly known 
by the name of “ Decretum Gratiant.” 


>= 


Coneordia parvee res crescunt et opu- 
lentia lites. 4 Inst. 74. Small means in- 


erease by concord and liligations by opu- | 


lence. 


CONCUBARIA. A fold, pen, or place 
where cattle lie. Cowell. 


CONCUBEANT. Lying together, as 
eattle, 


CONCUBINAGE. A species of loose or 
informal marriage which took place among 
the ancients, and which is yetin use in some 
countries. See-CONCUBINATUS. 

The act or practice of cohabiting, in sexual 
commerce, without the authority of law ora 
iegal marriage. 

An exception against a woman suing for 
dower, on the ground that she was the con- 
cubine, and not the wife, of the man of 
whose land she seeks to be endowed. Britt, 
e. 107, 


43 


eign with the pope, relative to ecclesiastical | 


A collection of ecelesiastical | 


CONDEDIT 


CONCUBINATUS. In Romanlaw. An 
informal, unsanctioned, or “natural” ware 
Tiage, as contradistinguislied from the juste 
nuptie, or justum matrimonium, the civil 
Marriage. 


CONCUBINE. (1) A woman who co- 
habits with a man to whom she is not mar- 
ried. (2) A sort of inferior wife, among the 
iomans, upon whom the husband did not 
confer his rank or quality. 


CONCUR, In Louisiana. To join with 
other claimants in presenting a demand 
against an insolvent estate. 


CONCURATOR. In the civil law. 
joint or co-curator, or guardian, 


CONCURRENCE. InFrenchlaw. The 
possession, by two or more persons, of equal 
rights or privileges over the same subject- 
matter. 


CONCURRENT. Having the same au- 
thority; acting in conjunction; agreeing in 
the same act; contributing to the same event; 
contemporaneous. 


CONCURRENT JURISDICTION. 
The jurisdiction of several different tribu- 
nals, both authorized to deal with the same 
subject-matter at the choice of the suitor. 


A 


CONCURRENT WRITS. Duplicate 
originals, or several writs running at the same 
time for the same purpose, for service on or 
arrest of a person, when it is not known 
where he is to be found; or for service on 
several persons, as when there are several de- 
fendants to an action. Mozley & Whitley. 


CONCURSUS, In the civillaw. (1) A 
running together; a collision, as concursus 
creditorum, a conflict among creditors. (2) 
A concurrence, or meeting, ns concursus ac- 
tiontwn, concurrence of actions, 


CONCUSS. To coerce. 


CONCUSSIO. Inthe civil law. The of- 
fense of extortion by threata of violence. 
Dig. 47, 13. 


CONCUSSION, Inthe civil law. The 
unlawful forcing of another by threats of 
violence to give something of value. It dif- 
fers from robvery, in this: that in robbery 
the thing is taken by force, while in con- 
cussion it is obtained by threatened violence, 
Heinec. Elem. § 1071. 


CONDEDIT. In geeclesiastical law. 
The name of a plea entered by a party to a 
libel filed in the ecelesiastieal court, in which 


In Secoteh law, 


CONDEMN 


it is pleaded that the deceased made the will 
which is the subject of the suit, and that he 
was of sound mind. 2 Eng. Ecc. R. 438; 6 
Eng. Lee. K. 431. 


CONDEMN. To find or adjudge guilty. 
3 Leon. 68. Toadjudge or sentence. 3 Bl. 
Comm, 29]. ‘To adjndge (as an admiralty 
court) that a vessel is a prize, or that she is 
unfit for service. 1 Kent, Comm. 102; 5 
Esp. 65. To set apart or expropriate prop- 
erty for public use, in the exercise of the 
power of eminent domain. 


CONDEMNATION. In admiralty law. 
The judgment or sentence of a court hay- 
ing jurisdiction and acting in rem, by which 
{1} it is declared that a vessel which has 
been captured at sea as a prize was lawfully 
so seized and is liable to be treated as prize; 
or (2) that property which has been seized 
for an alleged violation of the revenue laws, 
neutrality laws, navigation laws, ete, was 
lawfully so seized, and is, for such cause, for- 
feited to the government; or (3) that the ves- 
sel which is the subject of inquiry is unfit 
and unsaie for navigation, 

In the civil Jaw. A sentence or juilg- 
ment which condemns some one to do, to give, 
or to pay sumething, or which declares that 
his claim or preteusions are unfounded. 


CONDEMNATION MONEY. In prac- 
tice. The damages which the party failing 
in an action is adjudged or eondemned to 
pay; sometimes simply called the “condem- 
nation.” 

As used in an appeal-bond, this phrase 
means the damages which should be awarded 
against the appellant by the judgment of the 
eourt. It does not embrace damages not in- 
eluded in the judgment. 6 Blackf. 8. 


CONDESCENDENCE. In the Scotch 
law. <A part of the proceedings in a cause, 
setting fortii the facts of the case on the part 
of the pursuer or plaintiff. 


CONDICTIO. In Ronan law. A gen- 
eral term ior actions of a personal nature, 
founded upon an obligation to give or doa 
certain and defined thing or service. It is 
distinguished from vindicatio re?, which is 
an action to vindicate one’s right of property 
in a thing by regaining (or retaining) pos- 
session of it against the adverse claim of the 
other party. 


CONDICTIO CERTI. Inthe civil law. 
An aelion which lies upon a promise to doa 
thing, where such promise or stipulation is 


244 


; paid to the defendant, by mistake, and which 
; he was not bound to give or pay, either in 


| jecta. 


CONDITION 


certain, (st certa sit stipulatio.) Inst. 3, 16, 
pr.; Id. 3, 15, pr.; Dig. 12, 1; Bracheteg 
1030. 


CONDICTIO EX LEGEH, In the civil 
law. An action arising where the law gaya 
a remedy, but provided no appropriate forin 
of action. Calvin. 


CONDICTIO INDEBITATI, In the 
civillaw. An action which lay to recover 
anything which the plaintiff had given or 


fact or in law. 


CONDICTIO REI FURTIV A. Inthe 
civillaw. An action which lay to recover a 
thing stolen, against the thief himself, or his 
heir. Inst. 4, 1, 19. 


CONDICTIO SINE CAUSA. In the 
civiliaw. An action which lay in favor ofa 
person who had given or promised a thing 
without consideration, (causa.) Dig. 12, 7; 
Cod. 4, 9. 


CONDITIO. Lat. <A condition. 


Conditio beneficialis, que statum con- 
struit, benigne secundum verborum in- 
tentionem est interpretanda; oGiosa au- 
ten, quce statum destruit, stricte secun- 
dum verborum proprietatem accipienda, 
8 Coke, 90. A beneficial condition, which 
creates an estate, ought to be construed fa- 
vorably, according to the intention of the 
words; but a condition which destroys an 
estate is odious, and ought to be construed 
strictly according to the letter of the words. 


Conditio dicitur, cum quid in casum 
incertum qui potest tendere ad esse aut 
nou esse, conferiur. Co. Litt. 201. It is 
ealleda “condition,” when something is given 
on an uncertain eyent, which may or may 
not come into existence. 


Conditio illicita habetur pro non ad- 
An unlawful condition is deamed as 
not annexed. 


Conditio priecedens adimpleri debet 
prius quam sequatur effectus. Co. Litt. 
201. <A condition precedent must be fulfilled - 
before the effect can follow. 


CONDITION, In the civil law. The 
rank, situation, or degree of a particular per- 
scn in some one of the different orders of 
society. 

An agreement or stipulation in regard to 
some uncortain future event, not of the as- 
sential nature of the trausaction, but an- 


8 184. 


CONDITION 


upon its occurrence. Mackeld. Rom. Law, 


In the civil law, conditions are of the fol- 
lowing several kinds: 

The casual sondition is that which depends 
on chance, and is in no way in the power 
either of the creditor or of the debtor. Civil 
Code La. art. 2023. 

A miuel condition is one that depends at 
the sanie time on the will of one of the par- 
ties and on the will of a third person, or on 
the will of one of the parties and also on a 
casual event. Civil Code La, art. 2025, 

The potestative condition is that which 
mikes the execution of the agreement depend 
onan event which it is in the power of the 
one or the other of the contracting parties to 
bring about or to hinder. Civil Code La. 
art. 2024. 

A vesolutory condition ia one which de- 
stroys or releases an obligation already vested, 
as soon as the condition is fullilled. 

A suspensive condition is one which post- 
pones the obligation until the happening of a 
future and uncertain event, or a present but 
unknown event. 


In French law. In French law, the fol- 
lowing peculiar distinctions are made: (1) 
A condition is caswedle when it depends on a 
chance or hazard; (2) a condition is potesta- 
tive wlien it deponds on the accomplishment 
of something which is in the power of the 
parly to accomplish; (3) a condition is méixte 
when it depends partly on the will of the 
party and partly on the will of others; (4) a 
condition is swuspenstve when it is a future 
and uncertain event, or present but unknown 
event, upon which an obligation takes or 
fails to take effect; (5) a condition is resolu- 
tozre when it is the event which undoes an 
obligation which has already had effect as 
puch. Drown. 


In common law. Therank, situation, or 
degree of a particular person in some one of 
the different orders of society; or his status 
or situation, considered as a juridicial person, 
arising from positive law or the institutions 
of sociely. 

A clause in a contractor agreement which 
has for its object to suspend, rescind, or 
modify the principal obligation, or, in case 
of a will, to suspend, revoke, or modify the 
devise or bequest. 1 Bouv. Inst. no. 730. 

A modus or quality annexed by him that 
hath an estate, or interest or right to the 
same, whereby an estate, etc., may either be 


. 


245 


| 


CONDITION 


exed to it by the parties, providing for a ' Cefeated, enlarged, or created upon an uncer- 
change or modification of their legal relations | tain event. 


Co. Litt. 201a. 

A qualification or restriction annexed to a 
conveyance of lands, whereby it is provided 
that in case a particular event dues or dues not 
happen, or in case the grantor or grantee does 
or omits to do a particular act, an estate shall 
commence, be enlarged, or be defeated. 
Greenl. Cruise, Dig. tit. xiii. c. i. § 1, 

The dilferent kinds of conditions known te 
the common law are defined under their ap- 
propriate naines in the following titles. A 
further classification is, however, here sub- 
joined: 

Conditions are either express or implied. 
They are express when they appear in the 
contract; they are implied whenever they re- 
sult from the operation of law, from the 
nature of the contract, or from the presumed 
intent of the parties. Civil Code La. art. 
2026. 

They are possible or impossible; the for- 
mer when they admit of performance in the 
ordinary course of events; the latter when 
it is contrary to the course of nature or 
human limitations that they should ever be 
performed. 

They are dawofud or unlarwy‘ul; the former 
when their character is not in violation of 
any rule, principle, or policy of law; the lat- 
ter when they are such as the law will not 
allow to be made. 

They are consistent or repugnant; the 
former when they are in harmony and 
concord with the other parts of the trans- 
action; the latLer when they contradict, an- 
nul, or neutralize the main purpose of the 
contract. Repugnant conditions are also 
called “insensible.” 

They are independent, dependent, or 
mutual; the first when each of the two con- 
ditions must be performed without any ref- 
erence to the other; the second when the per- 
formance of one is not obligatory until the 
actual performance of the other; the third 
when neither parby need perform his con- 
dition unless the other is ready and willing to 
perform his. 


Synonyms distinguished. A “condi- 
tion” is to be distinguished from a imitation, 
in that the iatter may be to or for the benefit 
of a stranger, who may then take advantage 
of its determination, while only the grantor, 
or those who stand in his place, can take ad- 
vantage of a condition, (16 Me. 158;) and in 
that « limitation enils the estate without en- 
try or claim, which ia not true of a condition. 
It also dilfers from a conditional limitation : 


CONDITION AFFIRMATIVE 


for in the latter the estate is limited over to ' without any words used by the party. 


a third person, while in case of a simple con- 
dition it reverts to the grantor, or his heirs 
cr devisees, 
which van be made by either grantor or gran- 
tee, while only the grantor can make a con- 
dition, (Co. Litt. 70.) A charge is a devise 
of land with a bequest out of the subject- 
matter, and a charge upon the devisee per- 
soually, in respect of the estate devised, gives 
him an estate oncondition. A condition also 
differs from a remainder; for, while the for- 
miner may operaie to defeat the estate before 
its natural termination, the latter cannot tuke 
effect unti] the completion of the preceding 
estate. 


CONDITION AYPFIRMATIVE. A 
condition which consists in doing a thing; 
as provided that the lessee shall pay rent, etc. 
Shep, Touch. 118. 


CONDITION COLLATERAL. <A con- 
dition where the act to be done is a collateral 
act. Shep. Touch. 118. 


CONDITION COMPULSORY. Acon- 
dition expressly requiring a thing to be done; 
as that a lessee shall pay £10 such a day, or 
his lease shall be void. Shep. Touch. 118. 


CONDITION COPULATIVE. A con- 
dition to do divers things. Shep. Touch, 
118, 


CONDITION DISJUNCTIVE. Acon- 
dition requiring one of several things to be 
done. Shep. Touch. 118. 


CONDITION EXPRESSED. A con- 
dition expressed in the deed by which it is 
ereated, (conditio expressa.) 2 Crabb, Real 
Prop. p. 792, § 2127; Bract. fol. 47. A con- 
dition annexed, by express words, to any 
feoffment, lease, or grant. ‘Termes de la 
Ley. 


CONDITION IMPLIED. One which 
the law infers or presumes, from the nature 
of the transaction or the conduct of the par- 
ties, to have been tacitly understood bet ween 
them as a part of ibe agreement, although 
not expressly mentioned. 


CONDITION IN DEED. Fr. condi- 
tien en faith. A condition expressed in a 
deed. (a3 a feoifment, lease, or grant,) in 
Plain words, or legal terms of Jaw. Cowell; 
Co. Litt. 20le. See Conprrion EXPRESSED. 


CONDITION IN LAW. A condition 
tacitly created or annevzed to a grant, by law, 


246 


It differs also from a covenant, dition annexed to the rent reserved out of the 


| tlonal disposition is one which depends upon 


CONDITIONAL DEVISE 


Co, 
Litt. 201a@. See CONDITION IMriiep, 


CONDITION INHERENT. A con- 
land whereof the estate is made; or rather to 
the estate in the land, in respect of reat, etc. 
Shep. Touch. 118. 


CONDITION NEGATIVE. A condi- 
tion which consists in not doing a thing; aa 
provided that the lessee shall not alien, ete. 
Shep. Touch. 118. 


CONDITION POSITIVE. One which 
requires that an eventshall happen or an act 
be done. ; 


CONDITION PRECEDENT. A con. 
dition precedent is one which is to be per- 
formed before some right dependent thereon 
accrues, or someact dependent thereon is per- 
formed. Civil Code Cal. § 1436, 

A condition which must happen or be per- 
formed before the estate to which i is an- 
nexed can vest or be enlarged. 


Conditions may be precedent or subsequent, In 
the former, thecondition must be performed befora 
the contract becomes absolute and obligatory up- 
on the other party. In the latter, the breacu of 
the condition may destroy the party’s rights under 
the contract, or may give a right to damages to the 
other party, according to a true construction of the 
intention of the parties, Code Ga. 1652, § 2724, 


CONDITION RESTRICTIVE. Acon- 
dition for notdoingathing; as that the lessee 
shall not alien or do waste, or the like. Shep. 
Touch. 118. 


CONDITION SINGLE. A condition to 
do one thingonly. Shop. Touch. 118. 


CONDITION SUBSEQUENT. A con- 
dition subsequent is one referring to afuture 
event, tipon the happening of whieh the ob- 
ligation becomes no longer binding upon the 
other party, if he chooses to avail himself of 
the condition. Civil Code Cal, § 1438. 

A condition annexed to an estate already 
vested, by the periormance of which such 
estate is kept and continued, and by the fail. 
ure or noo-periormance of whichit is defeat- 
ed. Co. Litt. 201; 2 Bl. Comm. 154. 


CONDITIONAL. That which is depend- 
ent upon or granted subject to a condition. 


CONDITIONAL CREDITOR. Inthe 
civil law. A creditor having a future right 
of action, or having a right of action in ex- 
pectancy. Dig. 50, 16, 54. 


CONDITIONAL DEVISH. A condi- 


CONDITIONAL FEE u 


the occurrence of some uncertuin event, by 
which it is either to take effect or be defeat- 
ed. Civtl Code Cal. § 1845. 


CONDITIONAL FEB. <An estate re- 
strained to sorne particular heirs, exclusive 
of others, as to the heirs ofa man’s body, by 
which only his lineal descendants were ad- 
milted, in exclusion of Gollateral; or to the 
heirs male of his body, in exclusion of heirs 
female, whether lineal or collateral. It was 


falled a “conditional fee,” by reason of tha | 


condition expressed or implied in the dona- 
tion of it that, if the donee died without such 
particular heirs, the land should revert to 
the donor. 2 Bl. Comm, 110. 


CONDITIONAL LEGACY. One 
which is liable tu take effect or to be defeated 
according to the occurrence or non-oceur- 
rence of some uncertain event. 


CONDITIONAL LIMITATION. A 
condition followed by a limitation over te a 
third person in case the condition be not ful- 
filled or there be a breach of it. 

A conditional limitation is where an estate ig so 
expressly defined and limited by the words of its 
creation that it cannot endure for any longer time 
than till the contingency happens upon which the 
estate is to fail. 1 Steph, Comm. 309, Between 
conditional limitations and estates depending on 


conditions subsequent thera is this difference; | 
thutin the former the estate determines as soon 


asthe contingency happens; but in the latter it 
endures until the grantor or his heirs take ad- 
vantage of the breach. Id. 310, 


CONDITIONAL OBLIGATION. An 
obligation is conditional when the rights or 
duties of any party thereto depend upon 
the oecurrence of an uncertain event. Civil 
Caile Cal, § 1484. 

The Lonisiana Code defines conditional ob- 
ligations as those which result from the op- 
eration of law, from the nature of the con- 
tract, or from the presumed intent of the 
parties. 2 La. Ann. 989. 


CONDITIONAL SALE. A sale in 


which the transfer of title is made to depend | 


upon the performance of @ condition. 

Conditional sales are distinguishable from mort- 
gages, They are to be taken strictly as independ- 
ent dealings between strangers, 
security for a debt, while a conditional sale is a 
purchase for a price paid, or to be paid, to beceme 
abselute on @ particular event; or a purchase ac- 
companied by an agreement to resell upon partie- 
ular terms. ¥ Ala. 24. 


CONDITIONAL STIPULATION. In 


the civillaw. A stipulation to do a thing 
ypou condition, as the happening of any 


ayent, 


A mortgarce is a | 


7 CONDUCTIO 


Conditiones quxelibet odicsze#; maxima 
autem contra matrimonium et commer- 
cium. Any conditions are odious, but es- 
pecially those which are against [in restraint 
of] marriage and commerco. Lofft, Appen- 
dix, 644. 


CONDITIONS CONCUREENT. Con- 
ditions concurrent are those Which are mut- 
ually depenilent, and are to be performed at 
the same time, Civil Code Cal. § 1437. 


CONDITIONS OF SALE. The terms 
upon which sales are made at anction; usual- 
ly written or printed and exposed in tle auc- 
tion room at the time of sale. 


CONDOMINTA. In thecivillaw. Co- 
ownerships or limited ownerships, such as 
emphyteusis, superficies, pignus, hypalheca, 
ususfructus, usus, and habitatio. These 
were more than mere jura in re alien, be- 
ing portion of the dominitzm itself, although 
they are commonly distinguished from the 
dominium strictly so called. Brown, 


CONDONACION,. InSpanishlaw, The 
remission of a debt, either expressly or tacil- 
We 

CONDONATION. The conditional re- 
mission or forgiveness, by one of the married 
parties, of a matrimonial offense committed 
by the other, and which would constitute a 
cause of divorce; the condition being that 
the offense shall not be repeated. See Civil 
Code Cal. § 115; 3 Hagg. Eec. 351, 629. 

“A blotting out of an offense [against the mar- 
ital relation] imputed so as to restore the offend- 
ing party to the same position he or she oceupied 
before the offense was committed.” 1 Sweb. & T. 
B34. 

Condonation is a conditional forgiveness found- 


ed on a full knowledge of all antecedent guilt. 36 
Ga. 286. 


CONDONE. To make condonation of, 


CONDUCT MONEY. In English prac- 
tice. Money paid to a witness who has been 
subpoenaed on a trisl, sufficient to defray the 
reasonable expenses of going to, slaying at, 
and returning from the place of trial. Lush, 
Pr. 460; Arehb. New Pr. 639, 


CONDUCTI ACTIO. In the civil law. 
An action which the hirer (conductor) of a 
thing might haveaguinst the letter, (ecador.) 
Inst. 3, 25, pr. 2. 


CONDUCTIO. In thecivillaw. A bir 
ing. Used generally in connection with the 
term locatio, a letting. Loeatio et condue- 
tio, (soinctimes united as a compound word, 
“tocatio-conductio,”) a letting and hiring 


H 


M 


CONDUCTOR 


Inst. 3, 25; Braet. fol. 62, ¢.28; Story, Bailm. 
B8 8, 368. 


CONDUCTOR. 
hirer. 


CONDUCTOR OPHRARUM. 1n the 
civillaw. A person who engages to perform 
a piece of work for another, at a stated 
price. 


CONDUCTUS. A thing hired. 


CONE AND KEY. In old English law. 
A women at fourteen or fifteen years of age 
mInay take charge of her house and receive 
cone and ey; that is, keep the accounts and 
keys. Cowell. Said by Lord Coke to be 
cover and kAcye, meaning that at that agea 
woman knew what in her house should be 
Kept under lock and key. 2 Inst. 203. 


CONFARREATIO. InBomanlaw. A 
sacrificia, vite resorted to by marrying per- 
sons of high patrician or priestly degree, for 
the purpose of clothing the husband with the 
manus over his wife; the civil modes of ef- 
fecting the sime thing being coemptio, (form- 
al,jand usus mulieris, (informal.) Brown, 


CONFECTIO. The making and comple- 
tion of a written instrument. 5 Coke, 1. 


CONFEDERACY. In criminal law. 
The association or banding together of two 
or more persons for the purpose of commit- 
ting an act or furthering an enterprise which 
is forbidden by law, or which, though law- 
fulin itself, becomes unlawful when made the 
object of the confederacy. Conspiracy is a 
more technieal term for this offense. 

The act of two or more who combine to- 
gether to do any damage or injury to anoth- 
er, or todo anv unlawful act. Jucob. See 
52 How. Pr. 853; 41 Wis. 284. 

In equity pleading. An improper com- 
bination alleged to have been entered into 
between the defendants to a bill in equity. 

In international law. A league or 
agreement between two or more independent 
states whereby they unite for their mutual 


In the civil law. A 


welfare und the furtherance of their common | 


aims. The term may apply to a union so 
formed for a temporary or limited purpose, 
asin the case of an offensive and defensive 
alliance; but it is more commonly used to 
denote that species of political connection 
betwven two or more independent states by 
which a central government is created, in- 
vested with certain powers of sovereignty, 
(mostly external,) and acting upon the sev- 
eral component stutes as its units, which, 


248 


CONFESSION 


however, retain their sovereign powers for 
domestic purposes and some others. See 
FEDERAL GOVERNMENT. 


CONFEDERATION. A league or com- 
pact for mutual support, particularly of 
princes, nations, or states. Such was the 
colonial government during the Revolution, 


CONFERENCE. A meeting of several 
persons for deliberation, for the interchange 
of opinion, or for the removal of differences 
er disputes. Thus, a meeting between a 
counsel and solicitor to advise on the cause 
of their clieut. 

In the practice of legislative bodies, when 
the two houses cannot agres upon a pending 
mesure, each appoints a committee of “con- 
ference,” and the committees meet and con- 
sult together for the purpose of removing 
differences, harmonizing conflicting views, 
and arranging a compromise which will be 
accepted by both houses. 

In international law. A personal meet- 
ing between the diplomatic agents of two or 
more powers, for the purpose of making 
statements and explanations that will obvi- 
ate the delay and difficulty attending the 
more formal conduct of negotiations. 

In French law. A concordance or iden- 
tity between two laws or two systems of laws. 


CONFESS. Toadmit the truth of a charge 
or accusation. Usually spoken of charges of 
tortious or criminal conduct. 


CONFESSING ERROR. A plea to an 
assignment of error, admitting the same. 


CONFESSIO. Lat. A confession. Con- 
Sessio in judicio, a confession made in or be- 
fore a court. 


Confessio facta in judicio omni pro- 
batione major est. A confession made in 
court is of greater effect than any proof. 
Jenk. Cent. 102. 


CONFESSION. In criminal law. A 
voluntary statement made by a person 
charged with the conimission of a crime or 
misdemeanor, communicated to another per- 
son, wherein he acknowledges himself to be 
guilty of the offense charged, and discloses 
the circumstances of the act or the share and 
participation which he had in it. 

Also the act of a prisoner, when arraigned 
for a crime or misdemeanor, in acknowledg- 
ing and avowing that he is guilty of the 
offense charged, 

Judictal confessions are tluse made before 


CONFESSION 


a magistrate or in court in the due course of 
legal proceedings. 

BHatra-judicial confessions are those made 
hy the party elsewhere than before a magis- 
trate orin open court. 1 Greenl. Ev. § 216, 


CONFESSION AND AVOIDANCE. 
A plea in confession and avoidance is one 
which avows and confesses the truth of the 
averments of fact in the declaration, cither 
expressly or by impliertion, but then proceeds 
to allege new matter which tends to deprive 
the facis admitted of their ordinary legal 
effect, or to obviate, neutralize, or avoid 
them. 


CONFESSION OF DEFENSE. In 
English practice. Where defendant alleges 
a ground of defense arising since the com- 
mencement of the action, the plaintiff may 
deliver confession of such defense and sign 
judgment for his costs up to the time of such 
pleading, unless it be otherwise ordered. 
Jud. Act 1875, Ord. XX. r. 3. 


CONFESSION OF JUDGMENT. The 
act of a debtor in permitting judgment to 
ba enlered against him by his creditor, for a 
stipulated sum, by a written statement to 
that effect or by warrant of attorney, with- 
out the institution of legal proceedings of 
any kind. 


CONFESSO, BILL TAKEN PRO. 
In equity practice. An order which the court 
of chancery makes when the defendant does 
not file an answer, that the plaintiff may take 
such a decree as the case made by his bill war- 
Tants. 


CONFESSOR An ececlesiastic who re- 
ceives auricular confessions of sins from per- 
sons under his spiritua) charge, and pro- 
nounces absolution uponthem. ‘The secrets 
of the confessional are not privileged com- 
munications af common law, but this has 


been changed by statute in some states. See 
1Greenl. Ev. §§ 247, 248. 
CONFESSORIA ACTIO. Lat. Inthe 


civil law. An action for enforcing a servi- 
tude Mackeld. Rom. Law, § 324. 


Confessus in judicio pro judicato 
habetur, et qnodamimodo sua sententia 
damnatur, 11 Coke, 80. A person con- 
fessing his guilt when arraigned is deemed 
to have been found guilty, and is, as it were, 
condemned by his own sentence. 


CONFIDENCE. Trust; reliance; 
ground of trust. In the construction of 
wills, this word is considered peculiarly ap- 


| 


249 


CONFIRMAT, ETC, 


propriate to create atrast. “It is as appli- 
cable to the subject of a trust, as nearly a 
synonym, as the English language is capable 
of. Trust is a confidence which one man re- 
poses in another, and confidence is a trust.” 
2 Pa. St. 133. 


CONFIDENTIAL COMMUNI- 
CATIONS. These are certain classes o£ 
communications, passing betweon persons 
who stand in a conlidential or fiduciary rela- 
tion to each other, (or who, on account of 
their relative situation, are under a special 
duty of secrecy and fidelity,) which the law 
will not permit to be divulged, or allow them 
to be inquired into in a court of justice, for 
the sake of public policy and the good order 
of society. Examples of such privileged re- 
lations are those of husband and wife and 
attorney and client. 


CONFIDENTIAL RELATION. 
A fiduciary relation. These phrases are used 
as convertible terms. It is a peculiar rela- 
tion which exists between client and attor- 
ney, principal and agent, principal and 
surety, landlord and tenant, parent and child, 
guardian and ward, ancestor and heir, hus- 
band and wife, trustee and cestui gue trust, 
executors or administraturs and creditors, 
legatees, or distributees, appointer and ap- 
pointes under powers, and partners and part 
owners. In these and like cases, the law, in 
order to prevent undue advantage from the 
unlimited confidence or sense of duty which 
the relation naturally creates, requires the 
utmost degree of good faith in all transac- 
tions between the parties. 57 Cal, 497; 1 
Story, Eq. Jur. 218. 


CONFINEMENT. Confinement may be 
by either a moral or a physical restraint, by 
threats of violence with a present force, or 
by physieal restraint of the person. 1Sum. 
Tal 


CONFIRM. To complete or establish 
that which was imperfect or uncertain; to 
ratify what has been done without authority 
or insufficiently. 


Confirmare est id firmum facere quod 
prius infirmum fuit. Co. Litt. 295. To 
confirm is to make firm that which was be- 
fore infirm, 


Confirmare nemo potest prius quam 
jus ei acciderit. No one can conlirm be 
fore tle right acerues to him. 10 Coke, 48. 


Confirmat usum qui tollit abusum. 
He confirms the use [of a thing] who re- 
moves the abuse, [of it.] Moore, 764. 


PE 


G 


H 


K 


L 


CONFIRMATIO 


CONFIRMATIO. The conveyanes of 
an estate, or the communication of a right 
that one hath in or unte lands or tenements, 
to anotber that hath the possession thereof, 
or some other estate therein, whereby a void- 
able estate is made sure and unavoidable, or 
whereby a particular estate is increased or 
enlarged. Shep. Touch. 311; 2 Bl. Comm. 
325. 


CONFIRMATIO CHARTARUM. 
Lat. Confirmation of the charters. <A stat- 
ule passed in the 25 Edw. 1., whereby the 
Great Charter is declared to be allowed as the 
common law; all judgments contrary to it 
are declared void; copies of it are ordered to 
he sent to all cathedral churches and read 
twice a year to the people; and sentence of 
excommunication is diracted to be as con- 
stuntly denounced against all those that, by 
word or deed or counsel, act contrary there- 
to or in any degree infringe it. 1B1.Comm. 
128. 


CONFIRMATIO CRESCENS. Anen- 
larging confirmation; one which enlarges a 
riglitful estate. Shep. ‘Toueh, 311. 


CONFIRMATIO DIMINUENS. A 
diminishing confirmation, A confirmation 
which tends and serves to diminish and 
abridge the services whereby a tenant doth 
hold, operating as a release of part of the 
services. Shep. Touch. 511, 


Confirmatio ost nulla ubi donum 
precedens est invalidum. Moore, 764; 
Co. Litt. 295. Confirmation is void where 
the preceding gift ia invalid. 


Confirmatio omnes supplet defectus, 
licet id quod actum est ab initio non 
valuit. Co, Litt. 295b. Confirmation sup- 
plies alldefects, though that which had been 
done was not valid at the beginning. 


CONFIRMATIO PERFICIENS. A 
confirmation which makes valid a wrongful 
and defeasible title, or makes a conditional 
estate absolute. Shep. Touch. dil. 


CONFIRMATION. A contract by which 
that which was infirm, imperfect, or suliject | 
to be avoided is made firm and unaveidable. 

A conveyance of an estate or right 77 esse, 
whereby & voidable estate is made sure and 
unavoidable, or whereby @ particular estate 
ig increased. Co. Jitt. 2960. 

In English ecelesiastieal law. The rat- 
ification by the archbishop ef the election of | 
a bishop by dean and chapter under the king’s 
letter missive prior to the investment and | 


1 


250 


) means, summary or arbitrary, as the sovereign, 


CONFLICT OF LAWS 


eonsecration of the Lishop by the arehb 
25 Hen. VIII. c. 20. 


CONFIRMAVI. Lat. Lhave confrr 
The emphatic word in the ancient deeds 
confirmation. Fleta, lib. 3, ¢. 14, § 5. 


CONFIRMEE. The grantee in a deed 
of confirmation. 


CONFIRMOR. The grantor in a deed of 
confirmation. 


CONFISCARE. Inciviland old English 
law. To confiscate; to claim for or bring 
intw the fisc, or treasury. Bract. fol. 150. 


CONFISCATE. Toappropriate property 
to the use of the state. ‘lo adjudge property 
to be forfeited to the public treasury; to seize 
and condemn private forfeited property to 
public use. 

Hormerly, it appears, this term was used as syn- 
ouymous with “forfeit,” but at present the dis 
tinction between the two terms is well maried 
Confiscation supervenesupon torfeiture. Ths per 
son, by his act, forfeits his property; the stata 
therenpon appropriates it, that is, confiscates if, 
Hence, to confiscate property implies that it has 
first been forfeited; but to forfeit property does 
not necessarily imply that it will be confiscated. 

“Confiscation” is also to be distinguished from 
“condemnation” as prize, Tkeformar is theactof 
the sovereign againsta rebellious subject; the lat 
ter is the act of a belligerent against unother bel- 
ligerent. Confiscation may be etfected by such 


expressing its will through lawful channels, may 
please to adopt. Condemnation as prize can only 
be mado in accordance with principles of law 
recognized in the common jurisprudence of tha 
world. Both are proceedings in rem, but confisca 
tion recognizes ths title of the original owner to 
the property, while iu prize the tenure of tho prop- 
erty is qualified, provisional, and destitute of ab 
solute ownership. 14 Ct. Cl, 48, 


CONFISCATION. Theaci of confiscat- 
ing; or of condemning and adjudging to the 
public treasury. 


CONFISK. An old form of confiscate, 


CONFITENS REUS. An accused per- 
son who admits his guilt. 


CONFLICT OF LAWS, 1. An opnosi- 
tion, conilict, or antagonism between diifer- 
ent laws of the same state or sovereignty 
upon the same subject-matter. 

2. Asimilarinconsistency between the ma- 
nicipal laws of different states or countries, 
arising in the case of persons who have ac 
quired rights or a status, or made contracts, 
or incurred obligations, within the territory 
of two or inore states, 

3. That branch of jurisprudence, arising 
from the diversity of the laws of different na- 


CONFLICT OF PRESUMPTIONS 


tious in their application to rights and reme- 
dies, which reconciles the inconsistency, or de- 
¢ides which law or systetn is to govern in the 
particular case, or settles the degree of force 
to be accorded to the law of a foreign country, 
(the acts or rights in question having arisen 
under it,) either where it varies from tle do- 
mestie law, or where the domestic law is si- 
lent or not exelusively applicabie to the case 
in point. in this sense, it is more properly 
called “private international law.” 


CONFLICT OF PRESUMPTIONS. 
In this conflict certain ruies are applicable, 
yiz.: (1) Special take precedence of general 
presumptions; (2) constant of casual ones; 
(3) presume in iavor of innocence; (4) of le- 
galiiy; (5) of validity; and, when these rules 
fail, the matteris said tobe atlarge. Brown. 


CONFORMITY. In English eeclesiasti- 
cal law. Adherence to the doctrines and 
usages of the Church of England, 


CONFORMITY, BILL OF, 
oF CONTORMITY. 


CONYRATRIE. Fr. In old English 
law. <A fraternity, brotherhood, or society. 
Cowell, 

CONFRERES. Brethren in a religious 


house; fellows of one and the same socicty, 
Cowell. 


CONFRONTATION. In criminal law, 
The act of setting a witness face to face with 


See Bini 


251 


{he prisoner, in order that the latter may | 


make any objection he has to the witness, or 
that the witness may identify the accused. 


CONFUSIO. Inthecivillaw. The insep- 
arable intermixture of property belonging to 
different owners; it is properly confined to 
the pouring together of fuids, but is some- 
times also used of a melting together of met- 
als or any compound formed by the irrecoy- 
erable commixture ef different substances. 

Itis distinguished from comimixtion by the 
fact that in the latter case a separation may 
be made, while in a case of comfusio there 
cannet be. 2 Bl. Comm, 40d. 


CONFUSION, In Roman and French 
law. A mode of extinguishing a debt, by 
the concurrence in the sume person of two 
qualities which mutually destroy one another. 
This may occur in several ways, as where 
the creditor becomes the heir of the debtor, ar 
the debtor the heir of the erediter, or either 


accedes to the title of the other by any other | 


anode of transfer. 
This tern, as used in the civil law, is syn- 


| 


| 


CONGEABLE 


onymous with “merger,” ag used in the com- 
mon law. It arises where two titles to the 
same property unite in the same person. 1 
Woods, 182. 


CONFUSION OF BOUNDARIES. 
The tifle of that branch of equity jurisdiction 
which relates to the discovery and settlement 
of conilicting, disputed, or vocertain bound- 
aries. 


CONFUSION OF GOODS. The insep- 
arable intermixture of property belonging to 
different owners; properly confined to the 
pouring together of fluids, but used in a 
wider sense to designate any indistinguish- 
able compound of elements belonging to dif- 
ferent owners. 

The term “confusion” is applicable to a mixing 
of chattels of one and the same general description, 
differing thus from “accession,” which is where 
various materials are united in one product. Cou- 
fusion of goods arises whorover the goods of two 


oY more persons are so blended as to have become 
undistinguishable, 1 Schouler, Pers. Prop. 41, 


CONFUSION OF RIGHTS. A union 
of the qualities of debtor and creJitorin the 
same person, The effect of such a union is, 
generally, to extinguish the debt. 1 Salk. 
306; Cre. Car, 551. 


CONFUSION OF TITLES. A civil- 


| law expression, synonymous with “merger,” 


as used in the common law, applying wiere 
two titles to the same property unite in the 
same person. IL Woods, 179. 


CONGHE. In the French law. Permis- 
sion, leave, license; a passport or clearance 
to a vessel; a permission to arm, equip, or 
havigate a vessal. 


CONGE D’ACCORDER. Leave to ac- 
cord. <A permission granted by the court, in 
the old process of levying a fine, to the da- 
fendant to agree with the plaintiff. 


CONGE D’EMPARLER. Fr. Leave 
foimparl. ‘The privilege of an imparilance, 
(licentia loguendé.) 3 Bl. Comm. 299. 


CONGE D’ESLIRE. A permission or 
license from the British sovereign to a dean 
and chapter to elect a bishop, in time of va- 
cation; or to an abbey or priory which is of 
royal foundation, to elect an abbot or prior. 


CONGHABLE. L. Fr. Lawl; per- 
missible; allowable. “Disseisin is properly 
where a man entereth into any lands or tene. 
ments where his entry is not congeabic, and 
putteth out lim that hath the freehold.” 
Lilt. § 279. See 7 Wheat. 107, 


D 


CONGILDGNES 252 CONJURATOR 
CONGILDCNES. InSaxon law. Fel- CONJUNCTA. Intheeivillaw. Things 
low-members of a guild. joined together or united; as distinguished 


CONGIUS. 
ing about a gallon and a pint. 


An ancient measure contain- 
Cowell. 


CONGREGATION. An assembly or so- 
ciety of persons who together constitute the 
principal supporters of a particular parish, or 
habitually meet at the same church for relig- 
lous exercises. 

In the ecclesiastical law, this term is used 
to designate certain bureaus at Rome, where 
ecclesiastical matters are attended to. 


CONGRESS. In international law. 
An assembly of envoys, commissioners, dep- 
uties, etc., froin different sovereignties who 
meet to concert measures for their common 
good, or to adjust their mutual concerns. 

In American law. The name of theleg- 
islative assembly of the United States, com- 
posed of the senate and house of represcnta- 
tives, (g. 0.) 


CONGRESSUS. The extreme practical 
test of the truth of a charge of impotence 
brouglit against a hushand by a wife. It is 
now disused. Causes Célébres, 6, 183. 


CONJECTIO, In the civil law of evi- 
dence. A throwing together. Presumption; 
the putting of things together, with the in- 
ference drawn therefrom. 


CONJECTIO CAUSA. In the civil 
law. A statementof thecase. A brief syn- 
opsis of the case given by the advocate to the 
judge in opening the trial. Calvin. 


CONJECTURE. A slight degree of cre- 
dence, arising from evidence too weak or too 
remote to cause belief. 

supposition or surmise. The idea of a 
fact, suggested by another fact; as a poussi- 
ble cause, concomitant, or result. Burrill, 
Cire, Ev. 27. 


CONJOINTS. Persons married to each 
other. Story, Confi, Laws, § 71. 


CONJUDEX, 
associate judge, 


In old English law. 
Bract. 403. 


CONJUGAL RIGHTS. Matrimonial 
rights; the right which husband and wife 
huve to each other’s society, comfort, and ar- 
fection. 


CONJUGIUM. One of the names of 
marriage, among the Romans. ‘Tayl. Civil 
Law, 284. 


CONJUNCT. In Scotehlaw. Joint. 


An 


from disjuncta, things disjoined or separated, 
Dig. 50, 16, 53. 


CONJUNCTIM. Lat. In old English 
law. Jointly. Inst. 2, 20, 8. 


CONJUNCTIM ET DIVISIM. L. Lat. 
In old English law. Jointly and severally. 


CONJUNCTIO. In thecivil law. Cona- 
junction; connection of words in a sentence. 
See Dig. 50, 16, 29, 142. 


Conjunctio mariti et femine est de 
jure nature. The union of husband and 
wife is of the law of nature. 


CONJUNCTIVE. <A grammatical term 
for particles which serve for joiniug or con- 
necting together. Thus, the conjunction 
“and” is called a “conjunctive,” aud “or” a 
“disjunctive,” conjunction. 


CONJUNCTIVE OBLIGATION. A 
conjunctive obligation is one in which the 
several objects in it are connected by a copu- 
lative, or in any other manner which shows 

| that all of them are severally comprised in 

| the contract. ‘This contract creates as many 
different obligations as there are different ob- 
jects; and the debtor, when he wishes to dis- 
charge himself, may foree the creditor to re- 
ceive them separately. Civil Code La, art, 
2063, 

CONJURATIO. In old English law. 
A swearing Logether; an oath administered 
to several together; a combination or coa- 
federacy under oath. Cowell. 

In old European law. A compact of 
the inhabitants of a commune, or municipal- 
ity, confirmed by their caths to each other 
and which was the basis of the commune. 
Steph, Lect. 119. 


CONJURATION. In old English law. 
A plot or compact made by persons combin- 
ing by oath to do any public harm, Cowell. 

The oiiense of having conference or coin- 
merce with evil spirits, in order to discover 
some secret, or effect some purpose, Id. 
Classed by Blackstone with witchcraft, en- 
chantment, and sorcery, but distinguished 
trom each of these by other writers. + G1. 
Comm. 60; Cowell. 


CONJURATOR. In old English law. 
One who swears or ia sworn with others; one 
bound by oath with others; a compurgator, 
a conspirator. 


CONNECTIONS 


CONNECTIONS, Relations by blood or 
mirriage, but more commonly the relations 
ofa person wilh whom one is connected by 
murriage. In this sense, the relations of a 
wifeara “connections” of her husband. The 
term is vague and indefinite, See 1 Pa, St. 
507. ; 

* 


CONNEXITH. In French law. This 
exists when two actions are pending which, 
although not identical as in dis pendens, are 
so nearly similar in object that it is expedi- 
ent to have them both adjudicated upon by 
the same judges, Arg. Fr. Mere. Law, 553. 


CONNIVANCE. The secret or indirect 
consent or permission of one person to the 
commission of an unlawful or criminal act 
by another. 

Literally, a winking at; intentional for- 
pearance to see a fault or other act; generally 
Implying consent to it. Webster. 

Connivance is the corrupt consent of one 
party to the commission of the acts of the 
other, constitnting the cause of divorce. 
Civil Code Cal. § 112. 


Oennivance differs from condonation, though the 
sano legal consequences may attend it. Conniv- 
ance necessarily involves criminality on the part 
of the individual who connives; condonation may 
take place without imputing the slightest blame 
to the party who forgives the injury. Connivance 
must be the act of the mind before jhe offense has 
been committed; condonation is the result of a de- 
termination to forgive an injury which was not 
known until after it was inflicted. 3 Hagg. Hee. 
850. 


CONNOISSEMENT. In French law. 
An instrument similar to our bill of lading. 


CONNUBIUM, Inthe civillaw. Mar- 
riage. Among the Romans, a lawful muar- 
riage as distinguished from “coneubinage,” 
{q. ®.,) which was an inferior marriage. 


CONOCIAMENTO. InSpanishlaw, A 
recognizance. White, New Reevp. b. 3d, tit. 
7, ¢. 5, § 3. 


CONOCIMIEBNTO. InSpanishlaw. A 
billof lading, In the Mediterranean ports it 
is called “poliza de cargamiento.” 


CONPOSSESSIO. In modern civil law. 
A joint possession. Mackeld. Rom. Law, 
§ 245, ’ 

CONQUEREUR. In Norman and old 


English law, The first purchaser of an es- 
' tale; he who Arst brouglit an estate into his 
family. 


CONQUEROR. In old English and 
Scotch law. ‘Lhe first purchaser of an esiate; 


253 


CONSANGUINITY 


he who brought it into the family owning it. 
2 Bl. Comm. 242, 243. 


CONQUEST. In fendal law. Con- 
quest; acquisition by purchase; any method 
of acquiring the ownership of an estate other 
than by descent. Also an astate acquired 
otherwise than by inheritance. 

In international law. The acquisition 
of the sovereignty of a country by force of 
arms, exercised by an independent power 
which reduces the vanquished to the submis- 
sian of its empire. 

In Scotch law. 


CONQUESTOR. Conqueror. 
given to William of Normandy. 


CONQUETS. In French law. The 
nime given to every acquisition which the 
husband and wife, jointly or severally, make 
during the conjugal eommunity. Thus, what- 
ever is acquired by the husband and wife, 
either by his or her industry or good fortune, 
inures to the extent of one-half tor Lhe bene- 
fit of the other. Merl. Repert. “Conguct.” 


CONQUISITIO. 
glish law. 


Bell. 
The title 


Purchase. 


In feudal and old Zn- 
Acquisition, 2 Bl, Comm. 242. 


CONQUISITOR. Infeudal law. <A pur- 
chaser, acquirer, or conqueror. 2 BI. Comin. 
242, 243, 


CONSANGUINEUS. A person related 
by blood; a person descended from the same 
common stock. 


Consanguineus est quasi eodem san- 
guine natus. Co, Lilt. 157. A person re- 
luted by consanguinity is, as 1t were, sprung 
from the same blood, 


CONSANGUINEDS FRATER. In 
civil and feudal law. <A half-brother by the 
father’s side, as distinguished from /rater 
uterinus, a brother by the mother’s side. 


CONSANGUINITY. The connection or 
relation of persons descended from the same 
stock or common ancestor. It iseither lineal 
or collateral. Lineal is that which subsists 
between persons of whom one is descended 
in a direct line from the other, as between 
gon, father, grandfather, great-grandfather, 
and so upwards in the direct ascending line; 
or between son. grandson, great-grandson, 
and so downwards in the direct descending 
line. Collateral agree with the lineal in this, 
that they descend from the same stock or 
ancestor; but differ in this, that they do not 
desevend one from the other. 2 Bl. Comm, 
202. 


CONSCIENCE 


CONSCIENCE. This term is not syn- 
onymous with “principle.” An “objection 
on principle” is not the same thing as a “con- 
scientious scruple” or opinion. 7 Cal. 140. 


CONSCIENCE, COURTS OF. Courts, 
not of record, constituted by act of parlia- 
ment in the city of London, and other towns, 
for the recovery of small debts; otherwise 
and more commonly called “Courts of Re 
quests.” 3 Steph. Comm. 451. 


Conscientia dicitur ® econ et scio, 
quasi seire cum Deo. 1 Coke, 100. Con- 
science is called from cor and seio, to know, 
as it were, with God. 


CONSCIENTIA REI ALIENI. In 
Scotch law. Knowledge of another's proper- 
ty; Knowledge that a thing is not one’s own, 
but belongs to another. He who has this 
knowledge, and retains possession, is charge- 
able with “violent profits.” 


CONSCRIPTION. Drafting into the 
military services of the state; compulsory 
service falling upon all male subjects evenly, 
within or under certain specified ages. 


CONSECRATE. In ecclesiastical law. 
To dedicate to sacred purposes, as a bishop 
by imposition of hands, or a church or 
cebhurehyard by prayers, etc. Consecration is 
performed by a bishop or archbishop. 


Consecratio est periodus electionis; 
electio est preeambula consecrationis. 2 
Rolle, 102. Consecration is the termination 
of election; election is the preamble of con- 
secration. 


CONSEIL DE FAMILLE. In French 
law. A family council. Certain acts require 
the sanction of this body. For example, a 
guardian can neither accept nor reject an in- 
heritance to which the minor has succeeded 
without its authority, (Code Nap. 461;) nor 
can he accept for the child a gift iter vivos 
without the like authority, (Id. 463.) 


CONSEIL JUDICIAIRE. In French 
law. When a person hag been subjected to 
an interdiction on the ground of his insane 
extravavance, but the interdiction is net ab- 
solute, but limited only, the court of first in- 
stance, which grants the interdiction, ap- 
points a council, called by this nume, with 
whose assistance the party may bring or de- 
fend actions, or compromise the same, alien- 
ute his estate, make or incur loans, and the 
like. Brown. 


CONSEILS DE PRUDHOMMES. In 
French law. <A species of trade tribunals, 


204 


| ject-matter. 


CONSENT-RULE 


charged with settling differences between: 
masters and workmen. They endeavor, in 
the first instance, to conciliate the parties. 
In default, they adjudicate upon the questions 
in dispute. Their decisions are final up te 
2007. Beyond that amount, appeals lie to 
the tribunals of commerce. Arg. Ir. Mere, 
Law, 553. 


CONSENSUAL CONTRACT. A term 
derived from the civillaw, denoting a contract 
founded upon and completed by the mere con- 
sent of the contracting parties, without any 
external formality or symbolic act to fix the 
obligation. 


Consensus est voluntas plurium ad 
quos res pertinet, simul juncta. Lofft, 
514. Consent is the conjoint will of several 
persons to whom the thing belongs. 


Consensus facit legem. Consent makes: 
the law. (A contract is law between the 
parties agresing to be bound byit.) Branch. 
Prine. 


Consensus, non concubitus, facit nup- 
tias vel matrimonium, et consentire non 
possunt ante annos nubiles. 6 Cole, 22. 
Consent, and not cohabitation, constitutes. 
nuptials or marriage, and persons cannot 
consent before marriageable yeara. 1 Ui. 
Comm. 434. 


Consensus tollit errorem. Co. Litt. 
126. Consent (acquiescence) removes mis- 
take, 


Consensus voluntas multorum ad quos 
res pertinet, simul juncta. Consent is the 
united will of several interested in one sub- 
Davis, 48; Branch, Prine. 


CONSENT. A concurrence of wills. 

Hepress consent is that directly given, 
either viva voce or in writing. 

Implied consent is that manifested by 
signs, actions, or facts, or by inaction or 
silence, which raise a presumption that the: 
consent has been given. 

Consent is an act of reason, accompanied 
with deliberation, the mind weighing as in 


| a balance the good or evil on each side. 1 


Story, Eq. Jur. § 222. 

There is a diiference between consenting and 
submitting. Every consent involves a submission; 
but a mere submission does not necessarily involve 
consent, 9 Car. & P. 722. 


CONSENT-RULE. In English practice. 
A superseded instrument, in which a defend- 
ant in an action of ejectment specified for 
what purpose he intended to defend, and un- 


CONSENTIENTES, ETC. 


lease, entry, and ouster, but that he was in 
possession. 


Consentientes et agontes pari peenn 
pleetentur. They who consent to an act, 
and they who doit, shall be visited with equal 
punishment. 5 Coke, 80. 


Consentire matrimonio non possunt 
infra [ante] annos nubiles. Varties can- 
nok consent to marriage within the years of 
marriage, [befors the age of consent.] 6 


Coke, 22. 


Consequentis non est consequentia. 
Bac. Max. The consequence of a consequence 
exists not. 


CONSEQUENTIAL DAMAGE, Such 


rectly and immediately from he act of the 
party, but only from some of the consequences 
or results of such act. 

The term “consequential damage” means some- 
times damage which is so remote as not to be ac 
tionable; sometimes damage which, though some- 
what remote, is actionable; or damage which, 
though actionable, does not follow immediately, 
in point of time, upon the doing cf the sect com- 
plained of. 51 N. H. 504. 

CONSEQUENTS. In Scotch law. Im- 
plied powers or authorities. Things which 
follow, usually by implication of law. A 
eomniission being given to execute any work, 
avery power necessary to carry it on is im- 
plied. 1 Kames, Eq. 242. 


CONSERVATOR, A guardian; protect- 
or; preserver. 

“When any person having property snall 
be found to be incapable of managing his 
affairs, by the court of probate in the dis- 
trich in which he resides, * * * if shall 
appoint some person to be his conservator, 
who, upon giving a probate bund, shall have 
the charge of the person and estate of such 
incapable person.” Gen. St. Conn. 1875, p. 
846, § 1. 


CONSERVATORS OF RIVERS. 
Commissioners or trustees in whom the con- 
trol of a certain river is vested, in England, 
by act of parliament. 


CONSIDE RATIO CURIA, 
ment of the court. 


CONSIDERATION. The inducement 
fo a contract. The canse, motive, price, or 
impelling influence which induces a con- 
tracting party to enter into a contract. The 
reason or material cause of a contract. 

Auy benefit conferred, or agreed to be con- 


The judg- 


damage, loss, or injury as does not flow di- | 


255 


CONSIDERATUM, ETC, 


lertook to confess not only the fictitious | ferred, upon the promisor, by any other por- 


son, to which the promisor is not lawfully 
entitled, or any prejudice suffered, or agreed 
to be suifered, by such person, other than 
such as he is at the time of consent lawfuily 
bound te suffer, as an inducement to the 
promisor, isa good consideration fer a prom- 
ise. Civil Code Cal. § 1605. 

Any act of the plaintiff from which the 
defendant ora stranger derives a benefit or 
advantage, or any labor, detriment, ar incon- 
venience sustained by the plaintiff, however 
small, if such act is performed or inconven- 
ience suffered by the plaintiff by the consent, 
express or implied, of the defendant. 3 Scott, 
250. 

Considerations ave classified and defined as 
follows: 

They are either express or implied; the 
former when they are specifically stated in a 
deed, contract, or other instrument; the lat- 
ter when inferred or supposed by the law 
from the acts or situation of the parties. 

They are either ewecuted or executory; the 
former being acts done or values given be- 
fore or at the time of making the contract; 
the Julter being promises to give or do some- 
thing in future. 

They are either good or valuable. A good 
consideration is such as is founded on natura! 
duty and affection, or ona strong moral obli- 
gation. A valuable consideration is founder 
on money, or something convertible into 
money, or having a value in money, except 
marriage, which is a valuable consideration. 
Code Ga, 1882, § 2741. See Chit. Cont, 7. 

A continuing consideration is one consist- 
ing in acts or performances which must nec- 
essarily extend over a considerable period of 
time. 

Concurrent considerations are those which 
arise at the same time or where the promises 
are simultaneous. 

Hquitabie or moral considerations aze de- 
yoid of efficacy in point of strict law, but are 
founded upon a moral duty, and may be 
made the basis of an express promise. 

A gratuitous consideration is one which ia 
not founded upon any such loss, injury, or 
inconvenisnes to the party to whom it moves 
as to make it valid in law. 

Past consideration is an act done before 
the contract is made, and is really by itself no 
consideration for a promise. Anson, Cont, 82. 


CONSIDERATUM EST PHR CURI- 
AM. (It is considered by the court.) The 
formal and ordinary commencement of a 
judgment. 


Ml 


CONSIDERATUR 


CONSIDERATUR. L. Lat. It is con- | 
sidered. Held to mean the same with con- 
sideratum est, 2 Strange, $74. 


CONSIGN. In the civil law. To de- 
posit in the custody of a third persona thing 
belonging to the debtor, for the benelit of the 
creditor, under the authority of a court of 
justice. Poth. Obl. pt. 3, c. 1, art. 8. 

In commercial law. To deliver goods 
to a carrier to be transmitted to a designated 
factor or agent, 

To deliver or transfer as a charge or trust; 
to commit, intrust, give in trust; to transfer 
from oneself to the care of another; to send 
or transmit goods to a merchant or factor for 
sale. 4 Daly, 320. 


CONSIGNATION. In Scotch law. 
The payment of money into the hands of a 
third party, when the creditor refuses to ac- 
cept of it. The person to whom the money 
is given is termed the “consignatory.” Bell. 

In Freneh law. <A deposit which a 
debtor makes of the thing that he owes into 
the hands of a third person, and under the 
authority of a court of justica. 1 Poth. Obl. 
536; 1 N. H, 304. 


CONSIGNEER. Inmercantilelaw. One 
to whom a consignment is made. The per- 
son to whom goods are shipped for sale. 


CONSIGNMENT. Theact or process of 
consigning goods; the transportation of goods 
consigned; an article or collection of goods 
sent to a factor to be sald; goods or property 
sent, by the aid of a common carrier, from 
one person in one place to another person in 
another place. See Consign. 


CONSIGHNOR. One who sends or makes 
aconsignment. A shipper of goods, 


Consilia multorum queeruntur in mag- 


nis, 4 Inst. 1. The counsels of many 
are required in great things. 
CONSILIARIUS. In the civil law. 


A counsellor, as distinguished from a pleader 
or advocate. An assistant judge. One who 
participates in the decisions. Du Cange. 


CONSILIUM. A day appointed to hear 
the counsel of both parties. A caseset down 
for argument. 

It is commonly used for the day appointed 
for the argument of ademurrer, or errors as- 
signed. 1 Tidd, Pr. 438. 


CONSIMILE CASU. In practice. A 
writ of entry, framed under the provisions 
i the statute Westminster 2, (138 Edw. I.,) | 


255 


| ley. 


CONSOLIDATED ORDERS 


e, 24, which lay for the benefit of the rever. 
sioner, where a tenant by the curtesy aliene 
in fee or for life. 


CONSISTING. Being composed or made 
up of, This word is not synonymous with 
“ineluding;” for the latter, when used ia 
connection with a number of specified ob- 
jects, always implies that there may be oth 
ers which are not mentioned. 6 Mo. App. 
331. 

CONSISTORIUM. The state council of 
the Roman emperors. Mackeld. Rom. Luw, 
§ 58. 


CONSISTORY. [In ecciesiastical law. 
An assembly of cardinals convoked by the 
pope. 

CONSISTORY COURTS. Courts held 
by diocesan bishops within their several 
cathedrals, for the trial of ecclesiastical cause 
es arising within their respective dioceses, 
The bishop’s chancellor, or his commissary, 
is the judge; and from his sentence an ap 
peal lies to Lhe arclibishop. Mozley & Whit- 


CONSOBRINEI. Inthecivillaw. Cous- 
ins-german, in general; brothers’ and sisters’ 
children, considered in their relation tu each 
other. 


CONSOLATO DEL MARE. The name 
of a code of sea-laws, said to have been com- 
piled by order of the kings of Arragon (or, 
according to other authorities, af Pisa or Bur- 
eelona) in the fourteenth century, which 
comprised the maritime ordinances of the 
Roman emperors, of Franee and Spain, and 
of the Italian commercial powers, This com- 
pilation exercised a considerabie influence in 
the formation of European maritime law. 


CONSOLIDATE. To consolidate meang 
something more than rearrange or redivide, 
In a general sense, if means to unite into one 
mass or bedy, as to consolidate the forces af 
an army, or various funds. In parliamentary 
usage, to consolidate two bills is to unite 
them into one. In law, to consolidate bene. 
fices is to combine them into one. 45 lowa 
56. 

CONSOLIDATED FUND. In England 
A fund for the payment of the public debt. 


CONSOLIDATED ORDERS. The or- 
ders regulating the practice of the English 
court of chancery, which were issued, in 
1860, in substitution for the various orders 
which had previousiy been promulgated from 
time to time. 


CONSOLIDATION 


ATION. In the civil law. 
of the usufrnet with the estate 
ich it issues, in the same person; 
| happens when the usufructuary ac- 
the estate, or vice versa. In vither 
usufruct is extinct. Lee. El. Dr. 
n Scotch law. The junction of the 
erty and superiority of an estate, where 

have been disjoined. Bell. 


ONSOLIDATION OF ACTIONS, 
act or process of uniting several actions 
one trial and judgment, by order of a 
int, Where all the actions are between the 
parties, pending in the same court, and 
rning upon the same or similar issues; or 
fe court may order that one of the aetions 
s tried, and the others decided without trial 
aecording to the judgment in the one se- 
levted. 

CONSOLIDATION OF BENEFICES. 
‘The act or process of uniting two or more of 
them into one. 


CONSOLIDATION OF CORPORA- 
‘TIONS. The union or merger into one cor- 
rate body of two or more corporations 
whieh had been separately created for simi- 
dar oreonnected purposes. In England this 
is termed “amalgamation.” 

Whien the rights, franchises, and effects of 
twe or more corporations are, by legal au- 
thority and agreement of the parties, com- 
bined and united into one whole, and com- 
mitted to a single corporation, the stockhold- 
ers of which are composed of those (so far as 
‘they choose to become such) of the compa- 
nies thus agreeing, this is in law, and ac- 
cording to common understanding, a eonsol- 
idation of such companies, whether such sin- 
gle corporation, called the consolidated com- 
pany, be a new one then created, or one of 
the original compxnies, continuing in exist- 
ence with only larger rights, capacity, and 
property. 64 Ala. 656. 


CONSOLIDATION RULE. In prac- 
tice. Arule or order of court requiring a 
plaintiff who has instituted separate suits 
pon several claims against the same defend- 
ant, to consolidate them in one action, where 
that can be done consistently with the rules 
of pleading. 


CONSOLS. An abbreviation of the ex- 
pression “consolidated annuities,” and used 
in modern times as a name of various funds 
united in one for the payment of the British 
national @ebt. 

AM. DICT.LAW—17 


257 


- CONSTABLE 


. Consortio malorum me quoque ma- 
Tum facit. Moore, 817. The company of 
wicked men makes me also wicked. 


CONSORTIUM. In the elvil law. A 
union of fortunes; a lawful Roman marriage. 
Also, the joining of several persons us par- 
ties to one action, In old English law, the 
term signified company or society. In the 
language of pleading, (as in the phrase per 
gttod consortium amisit)it means the eom- 
panionship or society of a wife. 


CONSPIRACY. In criminal law. A 
combination or confederacy between two or 
more persons formed for the purpose of com- 
mitting, by their joint efforts, some unlaw- 
ful or criminal act, or some act which is in- 
nocent in itself, but becomes unlawful when 
done by the concerted action of the conspira- 
tors, or for the purpose of using criminal or 
unlawful means to the commission of an act 
not in itself unlawful, 

The agreement or engagement of persons 
to co-operate in accomplishing some unlaw- 
ful purpose, or some purpose which muy not 
be unlawful, by unlawful means. 48 Me. 
218. 

Conspiracy is a consultation or agreement be- 
tween two or more persons, either falsely to ac- 
cuse another of a crime punishable by law; or 
wrongfully to injure or prejudice a third person, 
or any body of men, in any manner; or to commit 
any offense punishable by Jaw; or to do any act 
with intent to prevent the coursa of justice; or to 
effect a legal purpose with a corrupt intent, or by 
improper means. Hawk. P. C. ec, 72, § 2; Archb. 
Crim. Pl. 390, adding also combinations by jour- 
neymeén to raise wages. 6 Ala. 765. 


CONSPIRATIONE. An ancient writ 
that lay against conspirators. Keg. Orig. 
134; Fitzh. Nat. Brev. 114. 


CONSPIRATORS. Persong guilty of a 
conspiracy. 

Those who bind themselves by oath, cov- 
enant, or other alliance that each of them 
shall aid the other falsely and maliciously to 
indict persons; or falsely to move and main- 
tain pleas, elc. 33 Edw. I. St. 2. Besides 
these, there are conspirators in treasonable 
purposes; as for plotting against the govern- 
ment. Wharton, 


CONSTABLE. In medievallaw. The 
nameé given to a very high functionary under 
the French and English kings, the dignity 
and importance of whose office was only sec- 
ond to that of the monarch. He was in gen- 
ernl the leader of the royal armies, and had 
cognizance of all matters pertaining to war 
and arins, exercising both civil and military 


CONSTABLE 


jecisdiction. He was also charged with the 
vonservation of the peace of the nation. Tlius 
there was a “Constable of France” and a 
“Lord High Constable of England.” 


In English law. A public civil officer, 
4ose proper and general duty is to keep the 
peace within his district, though he is fre- 
quently charged with additional duties. 1BI. 
Comm. 356. 

High constables, in England, are officers ap 
pated in every hundred or franchise, whose 
proper duty seems to be to keep the king’s peace 
within their respective hundreds. 1 Bl. Comm. 
856, 3 Steph. Comm. 47. 

Petty eoustables are inferior officers in every 
town and parish, subordinate to the high consta- 
ble of the hundred, whose principal duty is the 
preservation of the peace, though they also have 
other particular duties assigned to them by act of 
parliament, particularly the service of the sum- 
monses and the execution of the warrants of jus- 
tices of the peace. i BL Comm. 3856; 3 Steph. 
Comm, 47, 48. 

Special constables are persons appointed (with 
or without their consent) by the magistrates to 
execute warrants on particular occasions, as in the 
case of riots, ete. ‘ 


In American law. An officer of a mu- 
nicipal corporation (usually elected) whose 
duties are similar to those of the sheriff, 
though bis powers are less and his jurisdic- 
diction smaller, He is to preserve the pub- 
lic peace, exeente the process of mayistrates’ 
eourts, and of some other tribunals, serve 


writs, attend the sessions of the criminal | 


courts, have the custody of juries, and dis- 
sharge other functions sometimes assigned 
to him by the loeal law or by statute, 


CONSTABLE OF A CASTLE. In En- 
viish law. An officer having charge of a 
castle; a warden, or keeper; otherwise called 
a “castellain.” 


CONSTABLE OF ENGLAND. (Called, 
also, “Marshal.”) ITis ottice consisted in the 
tare of the common peace of the realm in 
deeds of arms anid matters of war. Lamb. 
Oonst. 4. 


CONSTABLE OF SCOTLAND, An 
uflicer who was formerly entitled to command 
all the king’s armies in the absence of the 
king, and to take cognizance of all crimes 
somimitted within four miles of the king’s 
person or of parliament, the privy council, 
or any general convention of the states of 
the kingdom. The office was hereditary in 
the family of Errol, and was abolished by the 
20 Geo. III. ¢.43. Bell.; Ersk. Inst. 1, 3, 37, 


CONSTABLE OF THE EXCHEQ- 
UER. An officer mentioned in Fleta, lib. 
2, GOL. 


258 


ting forth the appearance, form, quality, color, 


CONSTITUTIO 


CONSTABLEWICK. In English law, 
The territorial jurisdiction of a constabie; ag 
bailiwick is of a bailiff or sheriff. 5 Ney. 
& M. 261. 


CONSTABULARIUS. An officer of 
horse; an officer having charge of foot or 
horse; a naval commander; an officer having 
charge of military affairs generally. Spel- 
man. 


CONSTAT. It is clear or evident; it ap- 
pears; it is certain; there is no doubt. Non 
constat, it does not appear. 

A certificate which the clerk of the pipe 
and auditors of the exchequer made, at the 
request of any person who intended to plead or 
move in that court, for the discharge of any- 
thing. The effect of it was the certifying 
what appears (constat) upon record, touch- 
ing the matter in question. Wharton. 


CONSTAT D’HUISSIER. In French 
law. An allidavit made by a hwissier, set 


etc., of any article upon which a suit depends, 
Arg. Ir. Mere. Law, 554, 


CONSTATE. To establish, constitute, 
or ordain. “Constating instruments” of a 
corporation are its charter, organic law, or 
the grant of powers to it, See examples of 
the use of the term, Green’s Brice, Ultra 
Vires, p. 39; 37 N. J. Eq. 368. 


CONSTITUENT. A word used as a 
correlative to “attorney,” to denote one who 
constitutes another his agent or invests the 
other with authority to act for him. 

It is also used in the languagw of politics, 
as a correlative to “representative,” the con- 
stituents of a legislator being those whom he 
represents and whose interests he is to care 


| for in pubiie affairs; usually the electors of 


his district. 

CONSTITUERE. To appoint, consti- 
tute, establish, ordain, or undertake. Used 
principally in ancient powers of attorney, and 
now supplanted by the English word “consti- 
tute.” 


CONSTITUIMUS. A Latin term, signi- 
fying we constitute or appoint. 


CONSTITUTED AUTHORITIES, 
Officers properly appointed under the consti- 
tion for the government of the people. 


CONSTITUTIO. In thecivil law. An 
imperial ordinance or constitution, distin- 
guished from Lex, Senatus-Consultum, and 
other kinds of law, and having its effect from 
the’sole will of the emperor. 


INSTITUTIO 


lishment or settlement. Used of 

ettled by the parties withouta 
¥ i] 

paid according to agreement. Du 

d English law. An ordinance or 
A provision of a statute. 


NSTITUTIO DOTIS. Establishment 


STITUTION. In public law. The 
nie and fundamental law of a nation or 
, Which may be written or unwritten, es- 
ishing the character and conception of 
government, laying the basic principles 
whieh its internal life is to be conformed, 
nizing the government, and regulating, 
iting, and limiting the functions of 
event departments, and prescribing the 
nt and manner of the exercise of sover- 
powers, 
In a more general sense, any fundamental 
or important law or edict; as the Novel Con- 
tions of Justinian; the Constitutions of 
Clarendon, 

in American law. The written instru- 
ment agreed upon by the people of the Union 
fa particular state, as the absolute rule of 
‘action and decision for all departments and 
oilicers of the government in respect to all 
the points covered by it, which must control 
“until it shall be changed by the authority 
which established it, and in opposition to 
Which any act or ordinance of any such de- 
partment or officer is null and void. Cooley, 
Const. Lim. 3. 


CONSTITUTIONAL. Consistent with 
the constitution; authorized by the constitu- 
tion; not conflicting with any provision of 
the constitution or fundamental law of the 
state. Dependent upon a constitution, or se- 
cured or regulated by a constitution; as 

_ “eonstitutional monarchy,” “constitutional 
rights.” 


CONSTITUTIONAL LAW. 1. That 
branch of the public law of a state which 
treats of the organization and frame of gov- 
ernment, theorgans and powers of sovereign- 
ty, the distribution of political and govern- 
mental authorities and functions, the funda- 
mental principles which are te regulate the 
Telatious of government and subject, and 
which prescribes generally the plan and 
metliod according to which the public affairs 
of the state are to be administered. 

2. That department of the science of law 

- which treats of constitutions, their establish- 


259 


CONSTRUCTIO, ETC. 


ment, construction, and interpretation, and 
of the validity of legal enactments as tested 
by the criterion of conformity to the funda- 
mental law. 

3. A constitutional Jaw is one which ts con- 
sonant to, and agrees with, the constitution; 
one which is not in violation of any provision 
of the constitution of the particular state. 


CONSTITUTIONES. Laws promnuigat- 
ed, i. e., enacted, by the Roman Emperor. 
They were of various kinds, namely, the fol- 
lowing: (1) dicta; (2) deereta; (3) re 
sertpta, called also “episiole.” Sometimes 
they were general, and intended to form a 
precedent for other like cases; at other times 
they were special, particular, or individual, 
(personales,) and not intended to form a prec- 
edent. The emperor had this power of irre- 
sponsible enactment by virtue of a certain lew 
regia, whereby he was made the fountain of 
justice and of mercy. Brown. 


Constitutiones tempore posteriores 
potiores sunt his que ipsas preecesser- 
unt. Dig. 1, 4,4. Later laws prevail over 
those which preceded them. 


CONSTITUTIONS OF CLAREN- 
DON. See CLARENDON. 


CONSTITUTOR. In the civil law. One 
who, by a simple agreement, becomes respon- 
sible fur the payment of another’s debt. 


CONSTITUTUM. In thecivillaw. An 
agreement to pay a subsisting debt which ex- 
ists without any stipulation, whether of the 
promisor or another party. It differs froma 
stipulation in that it must befor an existing 
debt. Du Cange. 


Constitutum esse eam domum wni- 
cuique nostrum debere existimari, ubi 
quisque sedes et tabulas haberet, suar- 
umque rerum coustifutionem fecisset. 
It is settled that that is to be considered the 
home of each one of us where he may have 
his habilation and account-books, and where 
he may have made an establishment of his 
business. Dig. 50, 16, 203. 


CONSTRAINT. This term is held to ba 
exactly equivalent with “restraint.” 2 Tenn, 
Ch. 427, 

In Scotch law. 
ress. 


CONSTRUCT. To build; erect; put to- 
gethor; make ready for use. 


Constraint means du- 


Constructio legis non facit injuriam. 
The construction of the law (a construction 


CONSTRUCTION 


made by the law} works no injury. Co. Litt. 
183; Broom, Max. 603. The law will make 
such a construction of an instrament as not 
to injure a party. © 


CONSTRUCTION. ‘The process, or the 
art, of determining the sense, real meaning, 
or proper explanation of obscure or ambigu- 
ous terms or provisions in a statute, written 
instrument, or oral agreement, or the appli- 
eation of such subject to the case in question, 
by reasoning in the light derived from ex- 
traneous connectel cireumstances or luws or 
writings bearing upon the same or a con- 
nected matter, or by seeking and applying 
tile probable aim and purpose of the pro- 
vision. 

Ji is to be noted that this term is properly 
distinguished from interpretation, although 
the two are often used synonymously. In 
strictness, interpretation is limited to explor- 
ing the written text, while construetion goes 
beyond and may call in the aid of extrinsic 
considerations, as above indicated. 


CONSTRUCTION, COURT OF. A 
court of equity or of common law, as the 
case may be, is called the court of construe- 
tion with regard to wills, as opposed to the 
court of probate, whose duty is to decide 
whether an instrument be a will at all. 
Now, the court of probate may decide that a 
given instrument is a will, and yet the court 
of construction may decide that it has no 
operation, by reason of perpetuities, illeyal- 
ity, uncertainty, ete. Wharton, 


CONSTRUCTIVE. That which is es- 
tablished by the mind of the law in its ack 
of consiruing facts, conduct, circumstances, 
or instruments; that which has not the char- 
acter assigned to it in its own essential nat- 
ure, but acquires such character in cunse- 
quenee of the way in which it is regarded by 
a rule or policy of law; hence, inferred, im- 
plied, made out by legal interpretation. 


CONSTRUCTIVE ASSENT. An as- 
yent or consent imputed to a party from a 
consiruction or interpretation of his con- 
duet; as distinguished from one which he 
actually expresses. 


CONSTRUCTIVE BREAKING INTO 
A HOUSE. A breaking made out by con- 
struction of law. As where a burglar gains 
anentry into a house by threats, fraud, or 
conspiracy. 2 Russ. Crimes, 9, 10. 


CONSTRUCTIVE FRAUD. Con- 
structive fraud consists (1) in any breach of 
duty which, without an actually fraudulent 


250 


CONSTRUCTIVE TOTAL L088 


intent, gains an advantage to the personi 
fault, or any one claiming under him, by 
misleading another to his prejudice, or tothe 
prejudice of any one claiming under him; or 
(2) in any such act or omission ag the law 
specially declares to be fraudulent, without 
Tespect to actual fraud. Civil Code Cal. 
§ 1573. 

By constructive frauds are meant sueh 
acts or contracts as, though not originating 
in any actual evil design or contrivance to 
perpetrate a positive fraud or injury upon 
other persons, are yet, by their tendency to 
deceive or mislead other persons, or to vio- 
late private or public confidence, or to im- 
pair or injure the public iuterests, deemed 
equally reprehensible with positive fraud; 
and therefore are prohibited by law, as 
within the same reason and mischief as acts 
and contracts done malo anime. 1 Story, 
Bq. Jur. § 258, 


CONSTRUCTIVE LARCENY. One 
where the felonious intent to appropriate the 
goods to his own use, at the time of the as- 
portation, is made out by construction from 
the defendant’s conduct, although, origi- 
nally, the taking was not apparently felo- 
nious. 2 East, P. C. 685; 1 Leach, 212, 


CONSTRUCTIVE MALICE. Implied 
malice; malice inferred from acts; malica 
imputed by law; malice which is not shown 
by direct proof of an intention to do injury, 
(express malice,) but which is inferentially 
established by the necessarily injurious re- 
sults of the acts shown to have been com- 
mitted. 


CONSTRUCTIVE NOTICE. Informa- 
tion or knowledge of a fact imputed by law 
to a person, (although he may not actually 
have it,) because he could wave discovered 
the fact by proper diligence, and his situation 
was such as to cast upon him the duty of in- 
quiring into it. 


CONSTRUCTIVE TAKING. A phrase 
used in the Jaw to characterize an act uot 
amounting to an actual appropriation of 
chattels, but which shows an intention to 
convert them to his use; as if a person in- 
trusted with the possession of goods deals 
with them contrary to the orders of the 
owner. 


CONSTRUCTIVE TOTAL LOSS. In 
marine insurance. This occura where the 
loss or injury to the vessel insured does not 
amount to its total disappearance ov destrue- 
tion, but where, although the vessel still re- 


CONSTRUCTIVE TREASON 2 


naing, the cost of repairing or recovering ‘t 

old amount to more than its value when 
60 repaired, and consequently the insured 
‘abandons it to the underwriters, See Aor- 
‘VAL Tota Loss. 


CONSTRUCTIVE TREASON.  Trea- 
son imputed to a person by law from his con- 
‘duct or course of actions, though his deeds 
taken severally do not amount to actual trea- 
gon. This doctrine is not known in the 
United States. 


CONSTRUCTIVE TRUST. A trust 
raised by construction of law, or arising by 
operation of law, as distinguished from an 
express trust. 

Wherever the circumstances of a transac- 
tion are such that the person who takes the 
lega} estate in property cannot also enjoy the 
benelicial interest without necessarily vio- 
lating some established principle of equity, 
the court will immediately raise a construect- 
tee trust, und fasten it upon the conscience 
of the legal owner, so as to convert him into 
atrustes for the parties who in equity are 
entitled to the beneficial enjoyment. Hill, 
Trustees, 116; 1 Spence, Hq. Jur. 511. 


CONSTRUE. To put tegether; to ar- 
range or marshal the words of an instru- 
ment. To ascertain the meaning of lan- 
guage by a process of arrangement and in- 
ference, 


CONSUETUDINARIUS. In ecclesias- 
ticallaw. A ritual or book, containing the 
rites and forms of divine oilices, or the cus- 
toms of abbeys and monasteries. 


CONSUETUDINARY LAW. Custo- 
mary law. Law derived by oral tradition 
from a remote antiquity, ell. 


CONSUETUDINES. [In old Enelish 

law. Customs. Thus, consuetudines et as- 

sisa foreste, the customs and assise of the 
forest. 


CONSUETUDINES FEUDORUM. 
(Lat. feudal customs.) A compilation of the 
law of feuds or fiefs in Loinbardy, made <A, 
D, i170. 


CONSUETUDINIBUS ET SEHRVICI- 
IS. In old English law. <A writ of right 
close, which lay against a tenant who deforced 

his Jord of the rent or service due to him. 
Reg. Orig. 159; Fitzh. Nat. Grey. 151, 


CONSUETUDO, Lat. 
established usage or practice. 
Tolls; duties; taxes. Id. 58d. 


A eustom; an 
Co, Litt. 58. 


— ee. 


61 


| § 169. 


CONSUETUDO, ETC. 


CONSUETUDO ANGLICAWNA. The 
custom of England; tlie ancient common law, 
as distinguished from dex, the Roman or eivil 
law. 


Consuetudo contra rationem intro- 
ducts potius usurpatio quam consue- 
tudo appellari debet. A custom intro-~ 
duced against reason ought rather to be called 
a “usurpation” than a “custum.” Co. Litt. 
118. 


CONSUETUDO CURIZ. The custom 
or practice of a court. Hardr. 141. 


Consuetudo debet esse certa; nam in- 
eerta pro null& habetur. Dav. 33. A 
custom should be certain; for an uncertain 
eustom is considered null. 


Consuetudo est altera lex. Custom is 


another law. 4 Coke, 21. 


Consuetudo est optimus interpres le- 
gum. 2 Inst. 18. Custem is the best ex- 
pounder of the laws. 


Consuetudo et communis assuetudo 
vincit legem non scriptam, si sit spe- 
clalis; et interpretatur legem scriptam, 
si lex sit generalis. Jenk. Cent. 273. 
Custom and common usage overcomes the 
unwritten law, if it be special; and interprets 
the written law, if the law be general. 


Consuetudo ex certa causa rationabili 
usitata privat communem legem. A 
eustom, grounded on a certain and reason- 
abla cause, supersedes the common law. 
Litt. § 169; Co. Litt. 113; Broom, Max. 919. 


Consuetudo, licet sit magna aucto- 
ritatis, nunguam tamen  prajudicat 
manifeste veritati. A custom, though it 
be o! great authority, shouid never prejudice 
manifest truth, 4 Coke, 18. 


Consuetudo loci observanda est. Litt. 
The custom of a place is to be ob- 
served, 

Consuetudo manerit et loci obser- 
vanda est. 6 Coke, 67. <A custem of a 
manor and place is to be observed. 


CONSUETUDO MERCATORUM. 
Lat. The custom of merchants, the same 
with lex merecateria. 


Consuetudo neque injuria oriri neque 
tolli potest. Lofft, 840. Custem can 
neither arise from nor be taken away by in- 
jury. 

Consustudo non trahitur in conse- 
quentiam. 3 Keb. 499. Custom is not 


CONSUETUDO, ETC. 26 


drawn into consequence. 


139, 


Consuetudo prescripta et legitima 
Vineit legem. <A prescriptive and iawful 
eustom overcomes the law. Co. Litt. 113; 
4 Coke, 21. 


4 Jur. (N.8.) Ex. 


Consuetudo regni Anglis est lex 
Aughe. Jenk. Cent. 119. The custom of 
the kingdom of England is the law of Eng- 
land. See 2 LB). Comm. 422. 


Conwvuetudo semel reprobata non po- 
test amplius induci. A custom once dis- 
allowed cannot be again brought forward, 
for relied on.] Dav. 33. 


Consuetudo tollit communem legem. 
Co, Litt. 833b. Custom takes away the com- | 
mon law. 


Consuetudo volentes ducit, lex no- 
lentes trait. Custom leads the willing, 


law compels [drags] the unwilling. Jenk, 
Cent. 274. 
CONSUL. In Roman law. During 


the republic, the name “consul” was given 
to the chief executive magistrate, two of 
whom were chosen aunually. The office was 
coutinued under the empire, but its powers 
and prerogatives were greatly reduced. The 
name is supposed to have been derived from 
consude, to consuit, becuuse these officers con- 
sulted with the senate on administrative 
measures. 

In old Fnglish law. 
of an earl. 


In international law. An oificer of a 
commercial character, appointed by the dit- 
ferent statea to watch over the mercantile 
interests of the appointing state and of its 
subjects in foreign countries. There are 
usuaily a number of consuls in every mari- 
time country, and they are usually subject 
to a chief consul, who is called a “consul 
general.” Brown. 

The word “consul” has two moanings: 
{1} It denotes an officer of a particular grade 
in the consular service; (2) it has a broader 
generic sense, embracing all consular oflicers. 
15 Ct. Ch 64. 


The official designations employed throughout 
this title shall be deemed to have the following 
meanings, respectively; IJirst. “Consul general, ” 
“consul,” and “commercial agent shall be deemed 
to denote full, principal, and permanent consular 
officers, as distinguished from subordinates and 
substitutes. Seeond. “Deputy-consul” and “con- 
aular agent” shall bs decmed to denote consular offt- 
eers subordinate to such priacipals, exercising the 
powers and performing the duties within the lim- 


An ancient title 


sd 


a 


CONSUMMATION 


its of their consulates or commercial agencies ra 


spectively, the former at the same ports or places 
end the latter at ports or places different from 
those at which such principals are located respect 
ively. Third. “Vice-consuls” and “vyice-commer 
cial agents” shall be deemed te denote consular 
ofilcers who shall be substituted, temporarily, 
fill the places of consuls general, consuls, or com- 
mercial agents, when they shall be temporarily 
abseut or relieved fram duty. ov th. “Consular 
dilicer” shall be deemed to include consuls general, 
cousuls, commercial agents, deputy-consuls, vice 
consuls, vice-commercial agents, and consular 
agents, and none others. Fifil. “Diplomatic offi- 
cer” shall be deemed to include ambassadors, en 
yoys extraordinary, ministers plenipotentiary, 
ministers resident, commissioners, chargéa d’af- 
faires, agents, and secretaries of legation, and 
none others. Rev. St. U.S. § 1674. 


CONSULAR COURTS, Courts held by 
the consuls of one country, within the ter 
ritory of another, under authority given by 
treaty, for the settlement of civil cases be 
tween citizens of the country which the con- 
sul represents. In sore instances they have 
also a criminal jurisdiction, but in this re 
spect are subject to review by the courts of 
the home government. See Rev. St. U.S. 
§ 4083. 


CONSULTA ECCLESTIA. In ecclesias. 
tical law. A church full or provided for, 
Cowell. 


CONSULTARY RESPONSE. Tha 
opinion of a court of law on a special case. 


CONSULTATION, A writ whereby a 
canse which has been wrongfully removed by 
prohibition out of an ecclesiastical court toa 
temporal court is returned to the ecclesias- 
tical court. Phillim. Eee. Law, 1439. 

A conference between the counsel engaged 
in a case, to discuss its questions or arrange 
the method of conducting it. 

In French law. The opinion of coun: 
sel upona point of law submitted to tham. 


CONSULTO. Inthe civil law. 
edly; intentionally. Dig. 28, 41. 


CONSUMMATE. Completed; as distin. 
guished from énétiate, or that which iy 
merely begun. The husband of a woman 
seised of an estate of inheritance becomes, by 
the birth of a child, tenant by the curtesy 
initiate, and may do many acts to charge the 
lands, but his estate is not consummate till 
the death of the wife. 2 Bl, Comm. 126, 
128; Co. Litt. ota. 


CONSUMMATION. The completion of 
a thing; the completion of a marriage he- 
tween two afianced persons by cohabitation, 


Design- 


IOUS DISORDERS 


IOUS DISORDERS.  Dis- 
are cupable of being transmitted 
diate or immediate contact. 


TANGO. In English law. The 
ission received for carrying over or put- 


ver stocks or pay for them at a certain 
Wharton. 


‘ONTEK., L. Fr. <A contest, dispute, 
urbance, opposition. Britt. ¢. 42; Kel- 
Conteckours,; brawlers; disturbers of 
peace. Britt. c. 29, 


CONTEMNER. One who has committed 
contempt of court. 


CONTEMPLATION. The act of the 
d in considering with attention. Con- 
nued attention of the mind to a particular 
‘subject. Consideration of an act or series of 
acts with the intention of doing or adopting 

them. Tho censideration of an event or 
te of facts with the expectation that it will 
‘anspire. 


CONTEMPLATION OF BANK- 
RUPTCY. Contemplation of a state of 
bankruptcy or a known insolvency and in- 
ity to carry on business, and a stoppage 
of business. 5 Reporter, 295, 299. 
Something more is meant by the phrase 
than the expectation of insolvency; it in- 
eludes the making provision against the re- 
gulls of it. 13 How. 150; 8 Bosw. 194. 

By contemplation of bankruptcy is meant 
-acontemplation of the breaking up of one's 
‘business, or an inability to continue it. 
Crabbe, 529. 


CONTEMPORANEA HEXPOSITIO. 
Lat. Contemporaneous exposition, or con- 
atruction; a construction drawn from the 
_ time when, and the circumstances under 
which, the subject-matter to be construed, as 
a statute or custom, originated, 


4 


ig 


Contemporanea expositio est optima 
et fortissima in lege. Contemporaneous 
exposition is the best and strongest in the law. 
2 Inst.11. A statute is best explained by 
following the construction put upon it by 
judges who lived at the time it was made, or 
soon after. 10 Coke, 70; Broom, Max. 682. 


_ CONTEMPT. Contumacy; a willful dis- 
regard of the authority of a court of justice 
or legislative body or disobedience to its law- 
ful orders. 

Contempt of court is committed by a per- 
son who does any act in willful contraven- 
tion of its authority or diguity, or tending to 


6 time of execution of a contract | 


263 


CONTENTIOUS JURISDICTION 


impede or frustrate the administration of jJus- 
tice, or by one who, being under the court’s 
authority as a party to a proceeding therein, 
willfully disobeys its lawful orders or fails to 
comply with an undertaking which he has 
given. 

The disobedience of the defendant to the decrea 
of that court, in this instance, is palpable, willful, 
and utterly inexcusable, and therefore constitutes, 
beyond a doubt, what is termed a “contempt,” 
which is well described by an eminent jurist as“a 
disobedience to the court, by acting in opposition 
to the authority, justice, and dignity thereof,” 
adding that “it commonly consists in a party do 
ing otherwise than he is enjoined to do, or not do- 
ing what he is commanded or required by the pro- 
cess, order, or decree of the court; in all which 
cases the party disobeying is liable to be attached 
and committed for the contempt.” 21 Conn. 199. 

Contempts are of two kinds,—criminal and con- 
structive. Criminal contempts are those commit- 
ted in the immediate view and presence of the 
court, such as insulting langnage or acts of vi- c 
olence, which interrupt the regular proceedings in 
courts. Constructive contempts are those which 
arise from matters not transpiring in court, but in 
reference to failures to comply with the orders and 
decrees issued by the court, and to be performed 
elsewhere. 49 Me. 392. F 

Or they may be divided into such as are commit- 
ted in the face of the court (in facle cwrte) which 
are punishable by commitment and fine, and such 
as are committed out of court, which are punish- 
able by attachment. 1 Tidd, Pr. 479, 480. 4 BL. 
Comm. 285, 286; 4 Steph. Comm. 348-353. 


CONTEMPT OF CONGRESS, LEG- 
ISLATURE, or PARLIAMENT. What- 
ever obstructs or tends to obstruct the dua 
course of proceeding of either house, or 

¢ 
grossly reflects on the character of a member 
of either house, or imiputes to him what it 
would be a libel to impute toan ordinary per- 
son, is a contempt of the house, and thereby 
a breach of privilege. Sweet. l 


CONTEMPTIBILITER. 
temptuously. 

In old English law. Contempt, con- 
tempts. Fileta, lib. 2, e. 60, § 35. J 


CONTENTIOUS. Contested; adversary; 
litigated between adverse or contending 
parties; a judicial proceeding not merely ew 
parte in its character, but comprising attack 
and defense as between opposing parties, is so 
called. The litigious proceedings in ecclesi- 
astical courts are sometimes sald to belong to 
iis “contentious” jurisdiction, in contradis- L 
tinction to what is called its “voluntary” 
Jurisdiction, which is exercised in the grant- 
ing of licenses, probates of wills, dispensa- 
tions, faculties, etc. 


CONTENTIOUS JURISDICTION, In NM 
English ecclesiastical law. That branch 


Lat. Con- 


Pr 


CONTENTMENT 


of the jurisdiction of the ecclesiastical courts 
which is exercised upon adversary or conten- 
tious proceedings. See CONTENTIOUS. 


CONTENTMENT, CONTENEMENT. 
A man’s countenance or eredit, which he has 
together with, and by reason of, his freehold; 
or that which is necessary for the support 
and maintenance of men, agreeably to their 
several quilities or stules of life. Wharton; 
Cowell. 


CONTENTS AND NOT-CONTENTS. 
In parliamentary law. The “contents” are 
those who, in the house of lords, express as- 
sent to a bill; the “not” or “non contents” 
dissent. May, Par!. Law, cc. 12, 357. 


“CONTENTS UNKNOWN.” Words 
sometimes annexed to a bill of lading of 
goods in cases. Tieir meaning is that the 
master only means to acknowledge the ship- 
ment, in good order, of the cases, as to their 
external condition. 12 How. 273. 


CONTERMINOUS, Adjacent; adjoin- 
ing; having a common boundary; cotermi- 
nous. 


CONTEST. To make defense to an ad- 
verse claim ina court of law; to oppose, re- 
sist, or dispute the case made by a plaintiff. 


CONTESTATIO LITIS. 
law. Contestation of suit; the framing an 
issue; joinder in issue. The formal act of 
,both the parties with which the proceedings 
tm jure were closed when they led to a ju- 
dicial investigation, and by which the neigh- 
bors whom the parties brought with them 
were called to testify. Mackeld. Rom. Law, 
§ 219. 

In old English law. Coming to anissue; 
the issue so produced. Crabb, Eng. Law, 216. 


Contestatio litis eget terminos contra- | 


dictarios. An issue requires terms of con- 
tiadiction. Jenk. Cent. 117. To constitute 
an issue, there must be an affirmative on 
one side and a negative on the other 


CONTESTATION OF SUIT. In an 
ecclesiastical cause, that stage of tho suit 
which is reached when the defendant has an- 
swered the libel by giving in an allegation. 


CONTESTED ELECTION. This 
phrase has no technical or legally defined 
meaning, An election may be said to be 
contested whenever an objection is form- 
ally urged against it which, if found to 
be true in fact, would invalidate it. This is 
true both as to objections founded upon 


In Roman ; 


264 


CONTINGENCY, ETC. 


some constitutional provision and to sucha 
are based on statutes. 109 Ind. 116, 10 
I. Rep. 600. 


CONTEXT. The context of a particula 
sentence or clause in a statute, contract, wil 
et¢e., comprises those parts of the text whic 
immediately preeede and follow it. The 
context may sometimes be scrutinized, to all 
in the interpretation of an obscure passage. 


CONTIGUOUS. In close proximity; in 
actual close contact.’ 69 N. Y. 191. Touch 
ing; bounded or traversed by. The term ig 
not synonymous with “vicinal.” 32 La 
Ann. 405. 


CONTINENCIA. InSpanish law, OCon- 
tinency or unity of the proceedings in a cause, 
White, New Recop. b. 3, tit. 6, ¢. 1. 


CONTINENS. In the Roman law. 
Continuing; holding together. Adjoining 
buildings were said to be continentia. 


CONTINENTIA, Inold English prac 
tice. Continuanee or connection. Applied 
to the proceedings in a cause. Bract. fol, 
8625. 


CONTINGENCY. An event that may 
or may not happen, a doubtful or uncertain 
future event. The quality of being contin- 
gent. ; 

A fortuitous event, which comes without 
design, foresight, or expectation. A con- 
tingent expense must be deemed to be an ex- 
pense depending upon some future uncertain 
event. 39 Barb. 272. 


CONTINGENCY OF A PROCESS. 
In Scotch law. Where two or more pro- 
cesses are so connected that the circumstances 
of the one are likely to throw light on the 
others, the process first enrolled is considered 
as the leading process, and those subsequent- 
ly brought into court, if not brought in the 
same division, may be remitted to it, ob can- 
tingentiam, on account of their nearness or 
proximity in character to it. ‘The effect of 
remitting processes in this manner is merely 
to bring them before the same division of 
the court or same lord ordinary. In other 
respects they remain distinct. Bell. 


CONTINGENCY WITH DOUBLE 
ASPECT. A remainder is said to be “in 
a contingency with double aspect,” when 
there is another remainder limited on the 
same estate, not in derogation of the first, 
but asa substitute for it in case it should 
fail, Fearne, Rem. 373. 


> 


CONTINGENT 


NGENT. Possible, but not as- 
doubtful or uncertain; conditioned 
@ occurrence of some future event 
1 is itself uncertain or questionable. 

his term, when applied to a use, remain- 
devise, bequest, or other legal right or 
eres|, implies that no present interest ex- 
and that whether such interest or right 
will exist depends upon a future uncer- 
event. 5 Barb. 692. 


CONTINGENT DAMAGES. Where 
‘a demurrer has been filed to one or more 
‘counts in a declaration, and its consideration 
is postponed, and meanwhile other counts in 
the same declaration, not demurred to, are 
‘taken as issues, and tried, and damages 
awarded upon them, such damages are called 
“contingent damages.” 


CONTINGENT HSTATE. An estate 
which depends for its effect upon an event 
which may or may not happen; as an estate 
limited te a person not in esse, or not yet 
born. 2 Crabb, Real Prop. p. 4, § 946. 


CONTINGENT INTEREST IN PER- 
SONAL PROPERTY. It may be defined 
as a future interest not transmissible to the 


in case he dies before it vests in possession. 
Tis, if a testator leaves the income of a 
fund to his wife for life, and the capital of 
the fund to be distributed among such of his 
chiliiven as shajl be living at her death, the 
interest of each child during the widow’s 
life-time is contingent, and in case of his 
death is not transmissible to his representa- 
tives. Mozley & Whitley. 


CONTINGENT LEGACY. A legacy 
given to a person at a future uncertain time. 
that may or nay not arrive; as “at his age 
of twenty-one,” or “if” or “when he attains 
twenty-one.” 2 Bl. Comm. 513; 2 Steph. 
Comm. 259. 

A legacy made dependent upon some un- 
certain event. 1 Rop. Leg. 506. 

A legacy which has not vested. 


CONTINGENT REMAINDER. An 
estate in remainder which is limited to take 
effect either to a dubious and uncertain per- 
son, Or upon a dubious and uncertain event, 
by which no present or particular interest 
passes to the remainder-man, so that the par- 
ticular estate may chance te be determined 
and the remainder never take effect. 2 BI. 
Comm. 169, 

A remainder limited so as to depend upon 
an event or condition which may never hap- 


265 


Fepresentatives of the party entitled thereto, — 


CONTINUOUS EASEMENT 


pen or be performed, or which may not hap- 
pen or be performed till after the determina- 
tion of the preceding estate. Fearne, Rem. 3. 


CONTINGENT USE. A use limited to 
take effect upon the happening of some fut- 
ure contingent event; as where lands are 
conveyed to the use of A. and B., after a 
marriage shall be had between them. 2 Bl. 
Comni. 334. 


CONTINUAL CLAIM. Inold English 
law. A formal claim made by a party enti- 
tled to enter upon any lands or tenements, 
but deterred from such entry by menaces, or 
bodily fear, for the purpose of preserving or 
keeping alive his right. It was called “con- 
tinual,” because it was required to be re- 
peated once in the space of every year and 
day. It had to be made as near to the land 
ag the party could approach with safety, and, 
when made in due torm, had the same effect 
with, and in all respects amounted to, a legal 
entry. Litt. §§ 419-423; Co. Litt. 2500, 3 
Bl. Comm. 175. 


CONTINUANCE. The xadjournment or 
pustponement of an action pending in a court, 
to a subsequent day of the same or another 
term. 

Also the entry of a continuance made up- 
on the record of the court, for the purpose of 
formally evidencing the postponement, or of 
connecting the parts of the record so as to 
make one continuous whole. 


CONTINUANDO. In pleading. A 
word whici: was formerly used in a special 
declaration of trespass when the plaintiff 
would recover damages for several trespasses 
in the same action; and, to avoid multiplicity 
of actions, « man might in oneaction of tres- 
pass recover damages for many trespasses, 
laying the first to be done with a continuan- 
do to the whole time in which the rest of the 
trespasses were done; which was in this 
form: Continuando {by continuing) the 
trespasses aforesaid, ctc., from the day afore- 
said, ete., until such a day, including the 
last trespass. Termes de la Ley. 


CONTINUING CONSIDERATION. 
See CONSIDERATION. 


CONTINUING DAMAGES. 
AGES. 


CONTINUOUS ADVERSE USE. Is 
interchangeable with the term “uninterrupt- 
ed adverse use.” 59 Ind. 411. 


CONTINUOUS BASEMENT. One 
the enjoyment of which is or may be contin- 


See Dam- 


CONTRA 


ual, without the necessity of any actual in- 


266 


CONTRABAND OF WAR 


CONTRA JUS COMMUNE. Against 


terference by man, a8 a Water-spout, or a; common right or law; contrary to the rule 


tight of light or air; as distinguished froma 
discontinuous easement, which is ons the en- 
joyment of which can be had only by the in- 
terference of man, as a right of way,ora 
right to draw water. Washb..Easem. 13; 
Gale, Easem. 16; 21 N. ¥ 505: 60 Mich. 
202, 27 N. W. Rep. 512. This distinction is 
derived from the French law. See Civil 
Code, art. 688. 


CONTRA. Against, confronting, oppo- 
site to; on the other hand; on the contrary. 
The word is used in many Latin phrases, as 
appears by the following titles. In the books 
of reports, contra, appeuded to the name of 
& judge or counsel, indicates that he held a 
view of the matter in argument contrary to 
that next before advanced. Also, aiter cita- 
tion of cases in support of a position, contra 
is often prefixed to citations of cases op- 
posed to it. 


CONTRA BONOS MORES. 
good morals. 
are void. 


CONTRA FORMAM COLLATIONIS. 
In old English law. A writ that issued 
where lands given in perpetual alms to lay 
houses of religion, or to an abbot and con- 
vent, or to the warden or master of an hos- 
pital and his convent, to find certain poor 
men with necessaries, and do divine service, 
etc., were alienated, to the disherison of the 
house and church. By means of this writ 
the donor or his heirs could recover the lands. 
Reg. Orig. 238; Fitzh. Nat. Brev. 210. 


CONTRA FORMAM DONI. Against 
the form of the grant. See For srepon. 


Against 
Contracts contra bonos mores 


CONTRA FORMAM FEREOFFAMEN- 
TI, Inold English law. A writ that lay 
for the heir of a tenant, enfeoffed of certain 
lands or tenements, by charter of feoffment 
from a lord to make certain services and 
suits to his court, who was afterwards dis- 
trained for more services than were men- 
tioned in the charter. Reg. Orig. 176; Old 
Nat. Brev. 162. 


CONTRA FORMAM STATUTI. In 
eriminal pleading, (Contrary to the form of 
the statute in such case made and provided.) 
The usual conclusion of every indictment, 
ate., brought for an offense created by stat- 
ute. 


CONTRA JUS BELLI. Lat. Against 
the law of war. 1 Kent, Comm. 6. 


ee 


Bract. fol. 484. 


Contra legem-facit qui id facit quod 
lex prohibit; in fraudem vero qui, salvis 
verbis legis, sententiam ejus cireumvenit, 
He does contrary to the law who does what 
the law prohibits; he acts in fraud of the law 
who, the letter of the law being inviolate, 
uses the law contrary to its intention. Dig. 
Ld, 20) 


CONTRA LEGEM TERRA, Against 
the Jaw of the Jand. 


of the common law. 


Contra negantem principia non est dis- 
putandum, There is no disputing against 
one who denies first principles. Co. Litt. 
345, 


Contra non valentem agere nulla currit 
preescriptio. No prescription runs against 
a person unable to bring an action. Broom, 
Max. 903. 


CONTRA OMNES GENTES. Against 
all people. Formal words in old covenants 
of warranty. Fleta, Jib. 3, ¢. 14, § 11. 


CONTRA PACEM. Lat. Against the 
peace. A phrase used in-the Latin forms of 
indictments, and also of actions for trespass, 
to signify that the offense alleged was com- 
mitted against the public peace, @ ¢., in- 
volved a breach of the peace. The full 
formula was contra pacem domini regis, 
against the peace of the lord the king. In 
modern pleading, in this country, the phrase 
“against the peace of the commonwealth” or 
“of the people” is used. 


CONTRA PROFERENTEM. Against 
the party who proffers or puts forward a 
thing. 


CONTRA TABULAS. Inthe civil law. 
Against the will, (testament.) Dig. 37, 4. 


CONTRA VADIUM ET PLEGIUM. 
In old Englishlaw. Against gage and pledge. 
Bract. fol. 156, 


Contra veritatem lex nunquam aliquid 
permittit. The law never suifers anything 
contrary to truth. 2 Inst. 252. 


CONTRABAND. Against law or treaty; 
prohibited. Goods exported from or imported 
into a country against its laws. Brande. 
Articles, the importation or exportation of 
which is prohibited by law. P. Enc. 


CONTRABAND OF WAR. Certain 
classes of merchandise, such as arms and 


CONTRABAND OF WAR 


ammunilion, which, by the rules of interna- 
tional law, cannot lawfully be furnished or 
earried by a neutral nation to either of two 
belligerents; if found in transit in neutral 
vessels, such goods may be seized and con- 
demned for violation of neutrality. 

A recent American author on international law 


says that, “by the term ‘contraband of war,’ we 
now understand a elass of: articles of commerce 


which newtrtis are prohibited from furnishing to | 


either one of the belligerents, for the reason that, 
by 80 doing, injury is done to the other belliger- 
ent;” and he treats of the subject, chiefly, in its 
relation to commerce upon the high seas. (Hall, 
Int. Law, 570,592.) 4 Hoisk. 345. 


CONTRACAUSATOR. Acriminal; one 
prosecuted fur a crime. 


CONTRACT. Anagreement, upon suffi- 
cient consideration, to do or not to do a par- 
ticular thing. 2 Bl. Comm. 442; 2 Kent, 
Comm, 449. 

A covenant or agreement between two or 
more persons, with a lawful consideration or 
cause, Jacob, 

A deliberate engagement between com- 
petent parties, upon a legal consideration, to 
do, or abstain from doing, someact. Whar- 
fon. 

A contrict or agreement is either where a 
promise is mate on one side and assented to 


onthe other; or where two or more persons | 


enter into engagement with each other by a 
promise on either side. 2 Steph. Comm. 54. 

A contract is an agreement by which one 
person obligates himself to another to give, 
to do, or permit, or not to do, something ex- 
pressed or implied by such agreement. 
Civil Code La. art. 1761. 

A contract is an agreement to do or not to 
doa certain thing. Civil Code Cal. § 1549. 

A contract is an agreement between two 
or more parties for the doing or not doing of 
some specified thing. Ovde Ga. 1882, § 2714. 


A contract ig an agreement between two or 
more persons to do or not to do a particular thing; 


and the obligation of a contract is found in the | 


terms in which the contract is expressed, and is 
the duty thus assumed by the contracting parties 
respectively to perform the stipulations of such 
contract, When that duty is recognized and en- 
forced by the municipal law, it is one of perfect, 
and when not so recognized and enforced, of im 
perfect, obligation. 31 Conn. 265, 


The writing which contains the agree- 
ment of parties, with the terms and condi- 
tions, and which serves as a proof of the ob- 
ligation. 

Contracts may be classified on several dif- 
ferent methods, according to the element in 


267 


CONTRACT 


them which is bronght into prominenca 
The usual classifications are as follows: 


Record, specialty, simple. Contracts 
are divided into three classes: (1) Contracts 
of record, such as judgments, recognizances, 
and statutes staple; (2) specialties, which are 
under seal, such as deeds and bonds; (3) 
Simple contracts, or contracts by parol. 
There is no such fourth class as contracts in 
writing, distinct from verbal and seaied 
contracts; both verbal and written contracts 
are included in the class of simple contracts, 
and the only distinction between them is in 
regard to the mode of proof. Wharton. 

Contracts of record are not really contracts at 
a}], but are transactions which, being entered on 
the records of certain courts called “courts of rec- 
ord,” are conclusive proof of the facts thereby ap- 
pearing, and could formerly be enforced by action 
of law as if they had been put in the shape of a 
contract, They consist of judgments, recogni- 
zances, ete. Sweet. 

Express and implied. When the agrée- 
ment of the parties is definite and formal, 
and is stated either verbally or in writing, 
the contract is express; but when its terms 
have to be gathered by inference and deduc- 
tion from facts or conduct, it is implied. 


Executed and executory. Contracts 
are also distinguished into executed and ex- 
ecutory; executed, where nothing remains to 
be done by either party, and where the trans- 
action is completed at the moment that the 
arrangement is made, as where an article is 
sold and delivered, and payment therefor is 
made on the spot; executory, where some 
future act is to be done, ag where an agree- 
ment is made to build a housein six months, 
or to do an act on or before some future day, 
or to lend money upon a certain interest, 
payable at a future time. Wharton. 

An executed contract is one in which all the 
parties thereto have performed all the obligation 
which they have originally assumed. An execu- 
tory contract is one in which something remains 
to be done by one or more parties. Code Ga. 
1882, § 2715. 

Anexecuted contract is ons the object of which 


is fully performed. All others are executory. 
Civil Code Cal. § 1661, 


Entire and severable, An entire con- 
tract is one the consideration of which 
is entire on both sides. ‘The entire ful- 
fillment of the promise by either is a con- 
dition precedent to the fulfillment of any 
part of the promise by the other. Whenever, 
therefore, there is a contract to pay the gross 
sum for a certain and definite consideration, 
the contract is entire. <A severable contract 
is one the consideration of which is, by its 


CONTRACT 


terms, susceptible of apportionment on ei- 
ther side, so as to correspond to the unascer- 
tained consideration on the other side, as a 


contract to paya person the worth of his» 


services so long as he will do certain work; 
orl) give a certain price for every bushel 
of so much corn as corresponds to a saniple. 
Wharton. 


Principal and accessory. <A prizet- 
pai contract is one which stands by it- 
self, justifies its own existence, and is not 
subordinate or auxiliary to any other. <Ac- 
cessory contracts are those made for assur- 
ing the performance of a prior contract, 
either by the same parties or by others, such 
as suretyship, mortyage, and pledges. Civil 
Code La. art. 1764 


Unilateral and bilateral. <A wnilat- 
eraé contract is one in which one party 
makes an express engagement or under- 
takes a performance, without receiving in 
return any express engagement or prom- 
ise of performance fromthe other. Bilateral 
(or reciprocal) contracts are those by which 
the parties expressly enter into mutual en- 
gagements, such as sale or hire. Civil Code 
La. art, 1758; Poth. Obl. 1,1, 1, 2. 


Consensual and real, 
tracts ure such as are founded upon and 
completed by the mere agreement of the 
contracting parties, without any external 
formality or symbolic act to fix the ob- 
ligation. eal contracts are those in which 
it is necessary that there should be sume- 
thing more than mere consent, sueh us a loan 
of money, deposit, or pledge, which, from 
their nature, require a delivery of the thing, 
(7€5.) 

Certain and hazardous. 
tracts are those in which the thing to be 
done is supposed to depend on the will of 
the party, or when, in the usual course of 
events, if must happen in the manner stipu- 
lated. Hazardous contracts are those in 
which the performance of that which is one 
of its objects depends on an uncertain event. 
Civil Code La. 1769. 


Commutative and independent. Com- 
miutative contracts are those in which what 
is done, given, or promised by one party 
is considered as an equivalceut to or in con- 
sideration of what is done, given, or prom- 
ised by the other. Civil Code La. 1761, 
Imdependent contracts are those in which 
the mutual acts or promises have no relation 
to each other, either as equivalents or as con- 
siderations. Civil Code La. 1762. 


Consensual con- | 


Certain con- | 


268 


CONTRACTOR 


Gratuitous and onerous. Gratuit 
contracts are those of which the object 
the benelit of the person with whom 
is made, without any profit or advantage 
received or promised as a consideration for 
it. Itis not, however, the less gratuitous if 
it proceed either from gratitude fora benefit 
betore received or from the hope of receiving 
one hereafter, although such benelit be of a 
pecuniary nature, Civil Code La. 1766, 
Onerous contracts are those in which some- 
thing is given or promised as a consideration 
for the engagement or gift, or some service, 
interest, or condition is imposed on what is 
given or promised, although unequal to it in 
value. 

Mutual interest, mixed, ete. Con- 
tracts of mutual interest are such as are en- 
tered into for the reciprocal inlerest and 
utility of each of the parties; as sales, ex- 
change, partnership, and the like. Mived 
contracts are those by which one of the par: 
ties confers a benefit on the other, receiving 
something of inferior value in return, such 
as a donation subject to a charge. Contracts 
of beneficence are those by which only one of 
the contracting parties is benelited; as, loans, 
deposit, and mandate. Poth. Obl. 1, 1,1, 2 


CONTRACT OF BENEVOLENCE. 
A contract made forthe benefit of one of the 
contracting parties only, as a mandate or de 
posit. 


CONTRACT OF RECORD. A con 
tract of record is one which has been declared 
and adjudicated by a court having jurisdic 
tion, or which is entered of record in obedi- 
ence to, or in carrying out, the judgments of 
acourt. Code Ga. 1882, § 2716. 


CONTRACT OF SALE. A contract 
by which one of the contracting parties, 
called the “seller,” enters into an obligation 
to the other to cause him to have freely, bya 
title of proprietor, a thing, for the price of a 
cartain sum of money, which the other con- 
tracting party, called the “buyer,” on his 
part obliges himself to pay. Poth. Cont. 


CONTRACTION, Abbreviation; abridg- 
ment or shortening of a word by omitting a 
letter or letters orasyllable, with a mark over 
the place where the elision occurs, This was 
customary in records written in the ancient 
“court hand,” and is frequently found in the 
books printed in black-letter. 


CONTRACTOR. This term is strictly 
applicable to any person who enters into a 
contract, but is commonly reserved to desig 


r CONTRACTOR 


or the furnishing of goods in large 
‘ities, whether for the publie or a com- 
r individual. 


8; oue of the parties to a bargain, He 
agrees to Go anything for ancther is a con- 
12.N. ¥, 628. 


TRACTUS. 
tracts. 


JONTRACTUS BONA FIDE In 
man law. Contracts of good faith, 
e@ contracts which, when brought into 
gation, were not determine! by the ruies 
the strict law alone, but allowed the judge 
umine into Lie bona jides of the trans- 
», and to hear equitable considerations 
sitheir enforcement. In this they were 
ipposed to contracts strict? juris, against 
phich equitable defenses could not be enter- 
tained. 


law. Civilcontracts. Those contracts which 
were recognized as actionabie by the strict 
civil law of Rome, or as being founded upon 
4 particular statute, as distinguished from 
those which could not be enforced in the 
_ eourts exeept by the aid of the preetor, who, 
through lis equitable powers, gave an action 
Upon them. The latter were called “contrac- 
tus pretorti.” 

Contractus est quasi actus contra 
gotum. 2 Coke, 15. A contract is, as it 
were, ack against act. 


‘bonos mores, nmullus est. A contract 
founded on a base consideration, or against 
“good morals, is null, Hob, 167, 


Contractus legem ex conventione ac- 
cipiunt. Contracts receive legal sanction 
from the agreement of the parties. Dig. 16, 
3, 1, 6. 


CONTRADICT. In practice. To dis- 
if prove. To prove a fact contrary to what has 
been asserted by a witness. 


CONTRADICTION IN THRMS. A 
plirase of which the parts are expressly in- 
consistent, as, ¢. g., “an innocent murder;” 
“a fee-simple for life.” 


CONTRASCRITURA. In Spanish law. 
} A counter-wriling; counter-letter. A docu- 
ment executed at the same time with an act 
| of sale or other instrument, and operating by 


Contract; a contract; | 


CONTRACTUS CIVILES. In Roman | 


269 


primary meaning cf the word is one who |! 


Contractus ex turpi causa, vel contra | 


CONTRAT 


who, for a fixed price, undertakes the apparent effect and purport of the original 
the performance of works on a instrument. 


CONTRAFACTIO. Counterfeiting; as 
contrafactio sigilli regis, counterleiting the 
king’s seal, Cowell. 


CONTRAINTE PAR CORPS. In 
French law. The civil process of arrest of 
the person, which is imposed upon vendors 
falsely rapresenling their property to be un- 
incumbered, or upon persons mortgaging 
property which they are awure does not be- 
long to them, and in other cases of moral 
heinousness. Brown. 


CONTRALIGATIO, 
law. Counter-obligation. 
ter-binding, 
traligatio. 


In old English 
Literally, coun- 
st enim obligatio quast con- 
Fleia, lib. 2, ¢. 56, § 1. 


CONTRAMANDATIO. <A _ connter- 
manding. Contramandutio placiti, in old 
English law, was the respiting of a defend- 
ant, or giving him further time to answer, 
by countermanding the day fixed for him to 
plead, and appointing a new day; a sort of 
imparlance. 

CONTRAMANDATUM. A lawful ex- 
cuse, which adefendant in a suit by attorney 
alleges for himself to show that the plaintiff 
has no eause of complaint. Blount, 


CONTRAPLACITUM. Im old English 
law. A counter-plea, Townsh, Dl. 61. 


CONTRAPOSITIO, Inold Englishlaw. 


A plea oranswer. Dlount. A counter-po- 
sition. 
CONTRARIENTS. This word was used 


in the time of Edw. If. to signify those who 
were opposed to the government, but were 
neither rebels nor traitors, Jacob. 


Contrariorum contraria est ratio. 
Hob, 344. The reason of contrary things is 


_ Gontrary, 
COWTRAROTULATOR. <A controller. 
One whose business it was to observe the 


money which the collectors lad gathered for 
the use of the kingor the people. Cowell. 


CONTRAROTULATOR PIPA. An 
officer of the exchequer that writeth out sum- 
mons twice every year, to the sheriffs, to levy 
the rents and debts of the pipe. Blount. 


CONTRAT. In French law, Con- 
tracta are of the following varieties: (1) Bé- 
taterad, or synallagmatique, where each par- 
ty is bound to the other to do whit is just 


way of defeasance or otherwise modifying | and proper; or (2) unilateral, where the one 


K 


CONTRATALLIA 


side only is bound; or (3) commutatif, where 
one does to the ether something which is sup- 
posed to be an equivalent for what the other 
does to him; or (4) aééatozre, where the con- 
sideration for the act of the one is a mere 
chance; or (5) contrat de Lienfaisance, where 
the one party procures to the other a purely 
gratuitous benelit; or (6) contrat & titre 
onereug, Where each party is bound under 
some duty to the other. Brown, 


CONTRATALLIA. Inold English law. 
A counter-tally. A term used in the exe 
chequer. Mem. in Scace. M, 26 Edw. I. 


CONTRATENERE. To hold against; 
to withhold. Whishaw. 


CONTRAVENING EQUITY. Aright 
or equity, in another person, which is incon- 
sistent with and opposed to the equity sought 
to be enforced or recognized. 


CONTRAVENTION. In French law. 
An act which violates the law, a treaty, or an 
agreement which the party has made. That 
infraction of the law punished by a fine which 
does not exceed fifteen francs and by an im- 
prisonment not exceeding three days. Pen. 
Code, 1. 

In Scotch law. The act of breaking 
through any restraint imposed by deed, by 
covenant, or by a court. 


CONTRECTARE. Lat. In the civil 
Jaw. ‘To handle; to take hold of; to meddle 
with, 

In old English law. To treat. Vel 
male contrectet; or shall ill treat. Fleta, 
lib. 1, ¢. 17, § 4. 


CONTRECTATIO. In the civil and old 
Englishlaw. Touching; handling; meddling. 
The act of removing a thing from its plaee 
in such a manner that, if the thing be not 
restored, it will amount to theft. 


Contrectatio rei alienz, animo furan- 
di, est furtum. Jenk. Cent. 132. The 
touching or removing of another’s property, 
with an intention of stealing, is theft. 


CONTREFACON. InFrenchlaw. The 
offenae of printing or causing to be printeda 
book, the copyright of which is held by an- 
other, without authority from him. Merl. 
epert. 


CONTRE-MAITRE. In French marine 
law. The chief officer of a vessel, who, in 
ease of the sickness or absence of the master, 
commanded in his place. Literally, the 
counter-master. 


270 


NN —_ —— 
an eT Erne 


CONTROLLER 


CONTRIBUTE. To supply a share or 
proportional part of money or property to 
wards the prosecution of a common enter- 
prise or the discharge of a joint obligation. 


CONTRIBUTION, In common law. 
The sharing of a loss or payment among 
several. The act of any one or saveral of 4 


number of co-debtors, co-sureties, ete., in re 


imbursing one of their number who has paid 
the whole debt or suffered the whole lability, 
each to the extent of his proportionate share, 


In maritime law. Where the property 
of ons of several parties interested in a vessel 
and cargo has been voluntarily sacrificed for 
the common safety, (as by throwing goods 
overboard to lighten the vessel.) such loss 


must be made good by the contribution of the 


others, which is termed “general average.” 
3 Kent, Comm. 232-244; 1 Story, Eq. Jur. 
§ 490. 


In the civil law. <A partition by which the 
creditors of an insolvent debtor divide among 
themselves the proceeds of his property pro- 
portionably to the amount of their respective 
eredits. Code La. art. 2522, no, 10. 

Contribution is the division which is made 
among the heirs of the suecession of the debts 
with which the succession is charged, accord- 
ing to the proportion which each is bound to 
bear. Civil Code La. art. 1420. 


CONTRIBUTIONE FACIENDA. In 
old English law. <A writ that lay where ten- 
ants in common were bound to do some act, 
and one of them was put to the whole bur- 
then, to compel the rest to make contribu- 
tion. Reg. Orig. 175; Fitzh. Nat. Brev. 162, 


CONTRIBUTORY. A person liable to 
contribute to the assets of a company which 
is being wound up, as being a member or (in 
some cases) a past member thereof. Mozley 
& Whitley. 


CONTRIBUTORY NEGLIGENCE. 
Contributory negligence, when set up as a 
defense to an action for injuries alleged to 
have been caused by the defendant’s negli- 
gence, Means any want of ordinary care on 
the part of the person injured, (or on the 
part of another whose negligence is im- 
putable to him,) which combined and con- 
curred with the defendant’s negligence, and 
contributed to the injury as a proximate 
cause thereof, and as an element without 
which the injury would not have occurred, 


CONTROLLER. A comptroller, which 
5e8. 


CONTROLMENT 


CONTROLMENT, In old English law. 
; controlling or checking of another 
“officer's account; the keeping of a counter- 
toll. 


CONTROVER. In old English law. 
An inventer or deviser of false news. 2 
Inst. 227, 


CONTROVERSY. A litigated question; 
adversary proceeding in a court of law; a 
civil action or suit, either at law or in equity. 


It differs from “case,” which includes all suits, 
¢riminal as well as civil; whereas “controversy” 
4s a civil and not # criminal proceeding. 2 Dall. 
410, 431, 432. 


CONTROVERT. To dispute; to deny; 
to oppose or contest; to take issue on. 


CONTUBERNIUM. In Roman law. 
The marriage of slaves; a permitted cohabita- 
tion. 


CONTUMACE CAPIENDO. In En- 
glish law. Excommunication in all cases of 
contempt in the spiritual courts is discontin- 
ued by 53 Geo. III. ¢ 127, § 2, and in lieu 
thereof, where a lawful citation or sentence 
has not been obeyed, the judge shall have 
power, after a certain period, to pronounce 
auch person contumucious and in contempt, 
and to signify the saine to the court of chan- 
cery, Whereupon a writ de contwmace capi- 
endo shall issue from that court, which shall 
have the same force and effect as formerly 
belonged, in case of contempt, to a writ de 
excommunicato capiendo, (2&3 Wm. IV. 
c. 93; 3 & 4 Vict. c. 93.) Wharton. 


CONTUMACY. The refusal or inten- 
tional omission of a person who has been 
duly cited before acourt to appear and defend 

the charge laid against him, or, if he is duly 
before the cvurt, to obey some lawful order 
or direction made in the cause. In the for- 
mer case it is called “presumed” contumacy; 
in the latter, “actual.” The term is chietly 
used in ecclesiastical law. Seeds Curt. Ecc. 1, 


CONTUMAX. One accused of a crime 
who refuses to appear and answer to the 


eharge. An outlaw. 
CONTUSION. In medical jurispru- 
dence. A bruise; a hurt or injury to the 


flesh or some part of the body by the blow of 
a blunt instrument, or by a fal], producing 
no severance of tissue or apparent wound. 
If the skin is broken, it is called a “contused 
wound.” 


CONTUTOR. Lat. In the civil law. 
A co-tutor, or co-guardian. Inst. 1, 24, 1. 


271 


CONVENTIO 


CONUSANCEH. In English law. 
nizance or jurisdiction. 
Termes de la Ley. 


CONUSANCE, CLAIM OF, 
NIZANCE. 


CONUSANT. One who knows; as, ifa 
party knowing of an agreement in which he 
has an interest makes no objection to it, he 
is suid to be conusant, Co, Litt. 157. 

CONUSER. See CoGnizEe. 

CONUSOR. See Coanizor. 


CONVENABLE. 
Suitable; agreeable; 
Litt. § 103. 


CONVENE. Inthecivil law. To bring 
an action. 
CONVENIENT. Proper; just; suitable. E 


CONVENIT. In civil and old English 
law. It is agreed; it was agreed. 


Cog 
Conusance of pleas. 


See Coa- 


In old English law. 
convenient; fitting. 


CONVENT. The fraternity of an abbey 
or priory, as socéetas is the number of fellows 
in a college. <A religious house, now re- 
garded as a merely voluntary association, not 
importing civil death. 33 Law J. Ch. 308. 


CONVENTICLE. A private assembly or G 
meeting for the exercise of religion, The word 
was first an appellation of reproach to the 
religious assemblies of Wyclitfe in the reigns 
of Edward III. and Richard LL., and was att- 
erwards applied to a meeting of dissenters 
from the established church. As this word 
in strict propriety denotes an unlawful as- 
sembly, it cannot be jusily applied to the 
assembling of persons in places of worship 
licensed according to the requisitions of law. 
Wharton. 


CONVENTIO. Incanonlaw. Theact 
of summoning or calling together the parties J 
by summoning the defendant. 

In the civillaw. <A compact, agreement, 
or convention. An agreement between two 
or more persons respecting a legal relation 
between them. ‘The term is oneof very wide 
scope, and applies to all classes of subjects in 
which an envagement or business relation 
may be founded by agreement. It is to be 
distinguished from the negotiations or pre- 
liminary transactions on the object of the 
convention and fixing its extent, which are 
not binding so long as the convention is not 
concluded, Mackeld. Rom. Law, §§ 385, 386. 

In contracts. Am agreement; a cove- 
nant. Coweil. 


F 


K 


J 


CONVENTIO IN UNUM 


CONVENTIO IN UNUM. Inthecivil 
law. The agreement between the two par- 
ties to a contract upon the sense of the con- 
tract proposed. If is an essential part of the 
contract, following the pollicitation or pro- 
posal emanating from the one, and followed 
by the consension or agreement of the other. 


Conventio privatorum non potest pub- 
lico juri derogare. The agreement of 
private persons cannot derogate from public 
right, é. e., cannot prevent the application of 
general rules of law, or render valid any con- 
travention of law. Co. Litt. 106e; Wing. 
Max. p. 746, max. 201. 


Conventio vincit legem. The express 
agreement of parties overcomes [prevails 
against] the law. Story, Ag. § 368. 


CONVENTION. In Romanlaw. An 
agreement between parties; a pact. A con- 
vention was a mutual engagement between 
two persons, possessing all the subjective req- 
uisites of a contract, but which did not give 
rise to an action, nor receive the sanction of 
the law, as bearing an “obligation,” until the 
objective requisite of a solemn ceremonial, 
(such as stipudatio) was supplied. In other 
words, convention was the informal agree- 
ment of the parties, which formed the basis 
of a contract, and which became a contract 
when the external formalities were superim- 
posed. See Maine, Auc. Law, 313. 

“he division of conventions into contracts and 
pacts was important in the Roman law. ‘The 
former were such conventions as already, by the 
older civil law, founded an obligation and action; 
all the othsr conventions were termed ‘ pacts.’ 
These generally did not produce an actionable ob- 
ligation. Actionability was subsequently given to 
several pacts, whereby they received the same 
power sand éfiicacy that contracts received.” 
Mackeld, Kom, Law, § $96. 

In English law. An extraordinary as- 
senibly of the houses of lords and commons, 
without the assent or suimmons of the sov- 
ereign. Iteun only be justified ex necessitate 
rei, a8 the parliament which restored Charles 
L,, and that which disposed of the crown 
and kingdom to Wiilitm and Mary. Whar- 
ton. 

Also the name of an old writ that lay for 
the breuch of a covenant. 


In legislation. An assembly of delegates 
or representatives chosen by the people for 
special and extraordinary legislative pur- 
poses, such as the framing or revision of a 

' state constitution. Also an assembly of detle- 
gates chosen by a political party, or by the 
‘party organization in a larger or sinaller ter- 


272 


CONVERSANT 


ritory, to nominate candidates for an ap. 
proaching election. 


CONVENTIONAL. Depending on, or 
arising from, the mutual agreement of par 
ties; as distinguished from deyal, which 
means. created by, or arising from, the actof 
the law, 


CONVENTIONAL HSTATES. Those 
freeholds not of inheritance or estates for life, 
which are created by the express acts of the 
parties, in contradistinction to thase which 
are legal and arise from the operation of law. 


CONVENTIONAL MORTGAGE, 
The conventional mortgage is a contract by 
which a person binds the whole of his prop- 
erty, or a portion of it only, in favor of anoth-— 
er, to sectire the execution of some engage- 
ment, but without divesting himself of pos- 
session. Civil Code La. art. 3290. 


CONVENTIONS, The name of a writ 
for the breach of any covenant in writing, 
whether real or personal. Reg. Orig. 115; 
Fitzh. Nat. Brev. 145. 


CONVENTIONS. This name is some 
times given to compacts or treatics with for- 
eign countries as to the apprehension and ex- 
tradition of fugitive offenders. See lixrra- 
DITION. 


CONVENTUAL CHURCH. In acclesi- 
astical law. That which consists of reyular 
clerks, professing some order or religion; or 
of dean and chapter; or other societies of 
spiritual men. 


CONVENTUALS. Religious men united 
in a convent or religious house, Cowell. 


CONVENTUS. A coming together; a 
convention or assembly. Conventus magna- 
tum vel procerum (the assembly of chief men 
or peers) was one of the names of the English 
parliament, 1 5]. Comm. 148. 

In the civil law. The term meant a 
gathering together of people; a crowd as- 
sembled for any purpose; also a convention, 
pact, or bargain. 

CONVENTUS JURIDICUS. In ths 
Roman law. <A court of sessions held in the 
Roman provinces, by the president of the 
province, assist:d by a certain number of 
counsellors and assessors, at Gixed periods, to 
lear and determine suits, and to provide for 
the civil administration of the province, 
Schm. Civil Law, Intred. 17. 


CONVERSANT, One who is intha 
habit of being in a particular place is said to 


CONVERSANTES 


be conversant there. Barnes, 162. Ac- 
quainied; familiar. 
CONVERSANTES. Inold Englishlaw. 


Conversant or dwelling; commorant. 


CONVERSE. The transposition of the 
subject and predicate in a proposition, as: 
“Tiverything is good in its place.” Converse, 
“Nothing is good which is not in its place.” 
Wharton. 


CONVERSION. In equity. The 
transformation of one species of property in- 
to another, as money into Jand or land into 
woney; or, more particularly, a fiction of 
law, by which equity assumes that such a 
transformation has taken place (contrary to 
the facl) when it is rendered necessary by the 
equities of the case,—as to carry into effect 
the directions of a will or settiement,—and 
by which the property so dealt with becomes 
invested with the properties and attributes of 
that into which it is supposed to have been 
converted. ; 


At law. An unauthorized assumption 
and exercise of the right of ownership over 
goods or personal chattels belonging to an- 
other, to the alteration of their condition or 
the exclusion of the owner’s rights. 44 Me. 
197; 36 N. H. 311; 45 Wis. 262, 


Conversion is defined to be an unauthorized 
assumption and exorcise of the right of ownership 
over goods belonging to another to the exclusion 
of the owner’s rights. A constructive conversion 
takes place when aperson does such acts in refer- 
ence to the goods of another as amount in law to 
appropriation of the property to himself. Every 
unauthorized taking of personal property, and all 
intermeddling with it, beyond the extent of the 
authority conferred, in case a limited authority 
has been given, with intent so to apply and dis- 
pose of it as to alter its condition or interfere with 
the owner’s dominion, is a conversion. 68 N. Y. 
24. 

“Conversion” and “carrying away” are not syn- 
onymous nor convertible terms, There may be a 
conversion without any carrying away. 26 Ala. 
101. 


CONVEY. Topass or transmit the title 
to property from one to another; to transfer 
property or the title to property by deed or 
instrument under seal. 

To convey real estate is, by an appropriate in- 
strument, to transfer the legal title to it from the 
present owner to another. 29 Conn. 356. 

Convey relates properly to the disposition of 
real property, not to personal. 21 Barb. 551, 561. 


CONVEYANCE. In pleading. 
duction or inducement, 
In real property law. The transfer of 
the title of land from one person or class of 
AM, DICT.LAW—18 


Intro- 


| ley. 


273 CONVEYANCING COUNSEL, ETC. 


persons to another. 
356. 

An instrument in writing under seal, (an- 
ciently termed an “assurance,”) by which 
some estateor interest in lands is transferred 
from one person to another; such as a deed, 
mortgage, ete. 2 Bl. Comm. 293, 295, 309. 

Conveyance includes every instrument in 
writing by which any estate or interest in 
real estate is created, aliened, mortgaged, or 
assigned, or by which the title to any real 
estate may be affected in law or equity, ex- 
cept last wills and festaments, leases for a 
term not exceeding three years, and execu- 
tory contracts for the sale or purchase of 
lands. 1 Rev. St. N. Y. p. 762, § 38; Gen, 
St. Minn. 1878, c. 40, § 26; How. St. Mich. 
1882, § 5689. 

The term “conveyance,” as used in the 
California Code, embraces every instrument 
in writing by which any estate or interest in 
real property is created, aliened, mortgaged, 
or incumbered, or by which the title to any 
teal property may be aifected, except wills. 
Civil Code Cal. § 1215. 


21 Barb. 551; 29 Conn. 


CONVEYANCE OF VESSELS. The 
transfer of the title to vessels. 


CONVEYANCER. One whose business 
it is to draw deeds, bonds, mortgages, wills, 
writs, or other legal papers, or to examine 
titles to real estate. 14 St. at Large, 118. 

He who draws conveyances; especially a 
barrister who confines himself to drawing 
conveyances, and other chamber practice. 
Mozley & Whitley. 


CONVEYANCING. A term including 
both the science and act of transferring titles 
to real estate from one man to another. 

Conveyancing is that part of the lawyer’s busi- 
ness wilich relates to the alienation and transmis- 
sion of property and other righis from one person 
to another, and to the framing of legal documents 
intended to create, define, transfer, or extinguish 
rights. It therefore includes the investigation of 
the title to land, and the preparation of areo- 
ments, wills, articles of association, private stat- 
utes operating as conveyances, and many other 
instruments in addition to conveyances properly 
socalled. Sweet. 


CONVEYANCING COUNSEL TO 
THE COURT OF CHANCERY. Cer- 
tain counsel, not less than six in number, ap- 
pointed by the lord chanceclior, for the purpose 
of assisting the court of chancery, or any 
jildge thereof, with their opinion in matters 
of title and conveyancing. Mozley & Whit- 


Ni 


CONVICIA, ETC, 


Convicia si irascaris tua divulgas; 
spreta exolescunt. dInst. 198. If yoube 
moved to anger by insults, you publish them; 
if despised, they are forgotten. 


CONVICIUM, In the civil law. The 
name of a species of slander or injury uttered 
in public, and which charged some one with 
some act contra bones mores. 


CONVICT, 2 To condemn after judl- 
dial investigation; to find a man guilty of a 
criminal charge. The word was formerly 
used also in the sense of finding against the 
defendant in a civil case. 


CONVICT, x. One who has been con- 
demned by a court. One who has been ad- 
judged guilty of a crime or misdeweanor. 
Usually spoken of condemned felons or the 
prisoners in penitentiaries, 

Formerly a man was said to be convict 
when he had been found guilty of treason or 
felony, but before judgment had been passed 
on him, after which he was said to be at- 
taint, (g. v.) Co. Litt. 3908. 


CONVICTED, This term has a definite 
signification in law, and means thata judg- 
ment of final condemnation has been pro- 
nounced against the accused. 10 Tex. App. 
409. 


CONVICTION. In practice. Ina gen- 
eral sense, the result of a criminal trial 
which ends in a judgment or sentence that 
the prisoner is guilty as charged. 

Finding a person guilty by verdict of a 
jury. 1 Bish. Crim, Law, § 223. 

A record of the summary procecdings upon 
any penal statute before one or more justices 
of the peace or other persons duly authorized, 
ina case Where the offender has been con- 
- vicled andsentenced. Holthouse. 

Summary conviction is one which takes 
place betore an authorized magistrate with- 
out the intervention of a jury. 

In ordinary phrase, the meaning of the 
word “conviction” is the finding by the jury 
of a verdict that the accused is guilty. But, 
in legal parlance, it often denotes the final 
judgment of the court. 69 .N. Y. 109. 

The ordinary legal meaning of “conyietion,” 
when used to designate a particular stage of acrim- 
inal prosecution triable hy a jury, is the confession 
of the accused in open court, or the verdictreturned 
against bim by the jury, which ascertains and pub- 
‘ishea the fact of his guilt, while “judgment” or 
“sentence” is the appropriate word to denote tha 
action of the court before which the trial is had, de- 
flaring the consequences to the convict of the fact 
tlius ascertained. A pardon granted after verdict of 
guilty, but before sentence, and pending a hearing 


274 


COOPERTIO 


upon exceptions taken by the accused during the 
trial, is granted after conviction, within the mean- 
ing of a constitutional restriction upon granting 
pardon before conviction. When, indeed, the 
word “conviction” is used to describe the effact of 
the guilt of the accused as judicially provad in 
one case, when pleaded or given in evidence iu 
another, itis sometimes used in a more compre 
hensive sense, including thea jndement of tha 
court upon the yerdiet er conlession of guilt; aa, 
for instance, in speaking of the plea of autrefols 
eonviel, or of the effect of guilt, judicially aseer 
tained, as a disqualification of the conviot. 109 
Mass, 323. See 17 Pick. 380. 


CONVIVIUM. A tenure by which a 
tenant was bound to provide meat and drink 
for his lord at least once in the year. Cow- 
ell. 


CONVOCATION. Inecclesiasiical law. 
The general assembly of the clergy to con- 
sult upon ecclesiastical matters. 


CONVOY. <A naval foree, under the 
command of an officer appointed by govern. 
ment, for the protection of merchant-ships 
and others, during the whole voyage, or such 
part of ifas is known to require such pro 
tection. Marsh. Ins. b. 1, ¢, 9, § 5; Park, 
Ins. 388; Peake, Add. Cus. 1432; 2 H. Bl, 
O51, 


CO-OBLIGOR. A joint obligor; one 
bound jointly with another or others in a 
bond or obligation. 


COOL BLOOD. In the law of homi- 
cide. Calmness or tranquillity; the undis- 
turbed possession of one’s faculties and 
reason; tle absenee of violent passion, fury, 
or uncontrollable excitement, 


COOLING TIME. Time for the mind 
to become so calm and sedate as that it is 
supposed to contemplate, comprehend, and 
coolly act with reference to the consequences 
likely to ensue. 10 Tex. App. 447. 


CO-OPHRATION. The combined 
action of numbers. Ji is of two distinet 
kinds: (1} Such co-operation as tukes place 
when several persons help each other in the 
same employment; (2) such co-operation as 
takea place when several persons help each 
other in diiferent employments. These may 
be termed “simple co-operation” and “com- 
plex co-operation.” Mill, Pol. Ee. 142, 


COOPERTIO. Inold English law. The 
head or branches of a tree cut duwn; though’ 
cuopertio arborum igs rather the bark of 


| timber trees felled, and ute: chumps and 


broken woed. Cowell. 


COOLERTUM 


COOPERTUM. In forest law. <A cov- 
ert; a thicket (dumetum) or shelter for wild 
beasts in a forest. Spelman. 


COOPERTURA. In forest law. A 
thicket, or covert of wood. 


COOPERTUS. Covert; covered. 


- ; surri holes; | ; : 
eee ee A concurring choles i crown or Jord of the soil, out of the lead 


the election, by the members of a close cor- 
poration, of a person to fill a vacancy. 


CO-ORDINATE and SUBORDI- 


NATE are terms often applied as a tesk to | 


ascertain the doubtful meaning of clauses in 
anact of parliament. If there be two, ono of 
which is grammatically governed by the oth- 
er, it is suid to be “subordinate” to it; but, 
if both are equally governed by some third 
cliuse, the two are calle! “co-ordinate.” 
Wharton. 


COPARCHNARY. A species of estate, 
or tenaney, which exists where lands of in- 
heritance descend from the ancestor to two 
or more persons, It arises in Englund either 
by common Jaw or particular custom. By 
common law, as where a person, seised in 
fee-situple or fee-tail, dies, and his next heirs 
are two or more females, his daughters, sis- 
ters, aunts, cousins, or their representatives; 
in this case they all inherit, and these co- 
heirs are then called “coparceners,” or, for 
brevity, “parceners” only. Litt. $§ 241, 242; 
2 Bl. Comm. 187. By particular custom, as 
Where iands descend, as in gavelkind, to all 
the miles in equal degree, as sons, brothers, 
uncles, ete. Litt. § 265; 1 Steph. Comm. 
319. 

While joint tenancies refer to persons, the idea 
of coparcenary refers to the estate. The title to 
it is always by descent. The respective shares 
May be unequal; as, for instance, one daughtor 
and two granddaughters, children of a deceased 
daughter, may take by the same act of descout, 
As to strangers, the tenauts’ scisin is a joint one, 
but, as between themselyes, each is seised of his 
orker own share, on whose death it goes to the 
heirs, and not by survivorship. The right of pos- 
session of coparcenérs is in common, and the pos- 
session of one is, in general, the possession of the 
others. 1 Washb. Real Prop. *414. 


COPARCENERS. Persons to whom an 
estute of inheritance descends jointly, and 
by whom it is held as an entire estate. 2 BI. 
Comm. 187. 


COPARTICEPS. In old English law. 
A coparcener. 
COPARTNER. Ons who is a partner 


with one or more other persons; a member 
of a partnership. 


275 


COPY 


COPARTNERSHIP. A partnership. 


COPARTNERY. In Scotch law. The 
contract of copartnership. A contract by 
which the several partners agree concerning 
the communication of loss or gain, arising 
from the subject of the contract. Bell, 


COPE. A custom or tribute due to the 
mines in Derbyshire; also a hill, or the roof 
and covering of a house; a church vestment. 


COPEMAN, or COPESMAN. 
man, (q. v.) 


A chap- 


COPESMATE. <A merchant; a partner 
in merchandise. 
COPIA. Lat. In civil and old En- 


glish law. Opportunity or means of access, 


In old English law. <A copy. Copia 
libelli, the copy of a libel. Reg. Orig. 38. 


COPIA LIBELLI DELISERANDA, 
The name of a writ that lay where a man 
could not get a copy of a libel at the hands 
of a spiritual judge, to have the same deliv- 
ered to him, leg. Orig. 51. 


COPIA VERA. In Scoteh practice. A 
true copy. Words written at the top of 
copies of instruments. 


COPPA. In English law. A crop or 
cock of grass, hay, or corn, divided into 
titheable portions, that it may be more fairly 
and justly tithed. 


COPPER AND SCALES. See Manor 
PATIO, 


COPPICEH, or COPSE. A small wood, 
consisting of underwood, which may be cut 
at twelve or fifteen years’ growth for fuel, 


COPULA. The corporal consummation 
of marriage. Copula, (in logic,) the link be- 
tween subject and predicate contained in the 
verb. 


Copulatio verborum indicat accepta- 
tionem in eodem sensu. Coupling of 
words together shows that they are lo be 
understood in the same sense. 4 Bacon's 
Works, p. 26; Broom, Max. 588. 


COPULATIVE TERM. One which is 
placed between two or more others to join 
them together, 


COPY. The transcript or double of an 
original writing; as the copy of a patent, 
charter, deed, etc. 

Haemplifications are copies verified by the 


Cory 


great seal or by the seal of a court. 
Iev. 19. 
Examined captes are those which have been 


1 Gilb. 


eompared with the original or with an official 


record thereof. 

Office copies are those made by officers in- 
trusted with the originals and authorized for 
that purpose. ’ 


COPYHOLD. Aspecies of estate at will, 
or customary estate in England, the only vis- 
ible title to which consists of the copies of the 
court rolis, which are made out by the stew- 
ard of the manor, on atenant’s being admit- 
ted to any parcel of land, or tenement belong- 
ing tothe manor, It is an estateat the wild 
of the lord, yet such 2 will as is agreeable to 
the custom of the manor, which customs ars 
preserved and evidenced by tho rolls of the 
several courts baron, in which they are en- 
tered. 2 Bl. Comm. 95. In a larger sense, 
copyhold is said to import every customary 
tenure, (that is, every tenure pending on the 
particular custom of a manor,) as opposed to 
free socuge, or freehold, which may now 
(since the abolition of knight-service) be con- 
sidered as the general or common-law tenure 
of the country. 1 Steph. Comm. 210. 


COPYHOLD COMMISSIONERS. 
Commissioners appointed to carry into effect 
various acts of parliament, having for their 
principal objects the compulsory commutation 
of manorial burdens and restrictions, (fines, 
heriots, rights to timber and minerals, etc.,) 
and the compulsory enfranchisement of copy- 
hold lands. 1 Steph. Comm. 6438; Elton, 
Copyh. 


COPYHOLDER. A tenant by copyhold 
tenure, (by copy of court-roll.) 2 Bi. Comm. 
95. 


COPYRIGHT. The right of literary prop- 
erty as recognized and sanctioned by positive 
law. Aright granted by statute to theauthor 
or originator of certain literary or artistic pro- 
ductions, whereby he is invested, for a lim- 
ited period, with the sole and exclusive priv- 
ilege of multiplying copies of the same and 
publishing and selling them. 

An incorporeal right, being the exclusive 
privilege of printing, reprinting, selling, and 
publishing his own original work, which the 
law allows an author. Wharton. 

Copyright is the exclusive right of the owner of 
an intellectual production to multiply and dispose 
of copies; the sole right to the capy, or to copy it. 
The word is used indifferently to signify the statu- 
tory and the common-law right; or one right is 
sometimes called “copyright” after pudlication, or 
statutory copyright, the other copyright before 


276 


CORD 


publication, or common-law copyright. The word 
is also used synonymously with “literary prop 
erty;” thus, the exclusive right of the owner pub- 
licly to read or exhibit a work is often called “eopy- 
right.” Thisisnotstrictly correct. Drone, Copyr, 
100, 

International copyright is the right of a 
subject of one country to protection against 
the republication in another country of a 
work which he originally published in his own 
country. Sweet, 


CORAAGIUM, or CORAAGEH, Meas- 
ures of corn, An unusual and extraordi- 
nary tribute, arising only on special occasions 
They are thus distinguished from services. 
Mentioned in connection with hidage and 
carvage. Cowell. 


CORAM. Lat. Before; in presence of. 
Applied to persons only. Townsh, Pl. 22, 


CORAM DOMINO REGE. Before our 
lord the king. Coram domino rege wbt- 
cumque tune fuerit Angiie, befvre our lord 
the king wherever he shall then be in Eng- 
land. 


4 


CORAM IPSO REGE. Beforethe king 
himsell. The old name of the court of king's 
bench, which was originally held before the 
king in person. 3 Bl. Comm. 41. 


CORAM NOBIS. Before us ourselves, 
(the king, @. ¢., in the king’s or queen’s 
bench.) Applied to writs of error directed 
to another branch of the same court, e. g., 
from the full beach to the court at nisi prius, 
1 Archb. Pr. K. b. 234. 


CORAM NON JUDICEH. In presence 
of a person not a judge. When a suit is 
brouglit and determined in a court which hag 
no jurisdiction in the matter, then it is said 
to be coram non judice, and the judgment is 
void. 


CORAM PARIBUS. Before the peers 
or freeholders. The attestation of deeds, like 
all other solemn transactions, was originally 
done only coram paribus. 2 Bl. Comin. 807. 
Coram paribus de vieineto, before the peers 
or freehulders of the neighborhood. Id. 315, 


CORAM SECTATORIBUS. Before the 
suilors. Cro. Jac. 582, 


CORAM VOBIS. Before you. A writ 
of error directed by a court of review to the 
court which tried the cause, to correct an er- 
ror in fact. 3 Md. 325; 3 Steph, Comm. 642, 


CORD. A measure of Wood, containing 
128 cubic feet. 


CO-RESPONDENT 


O-RESPONDENT. A person sum- 
ed to answer a bill, petition, or libel, to- 
er with another respondent. Now chief- 


adultery with the respondent in a suit for di- 
yorce for that cause, and joined as a defend- 
ant with such party. 


CORIUM FORISFACERE. To forfeit 
one’s skin, applied to a person condemned to 
be whipped; anciently the punishment of a 
servant. Coriwum perdere, the same. Cori- 
tum redimere, to compound for a whipping. 
Wharton. ‘ 


CORN. In English law, a general term 
for any sort of grain; but in America it is 
properly applied only to maize. In the mem- 
orandim clause in policies of insurance it in- 
Cluiles pease and beans, but not rice. Park, 
Ina, 112. 


CORN LAWS. A species of protective 
tariff formerly in existence in England, im- 
posing import-duties on various kinds of 
grain, ‘The corn laws were abolished in 
1846, 


CORN RENT. Arent in wheat or malt 
paid on college leases by direction of St. 18 
Eliz. c.6. 2 Bl. Comm, 609. 


CORNAGE. Aspecies of tenure in Eng- 
land, by which the tenant was bound to blow 
ahorn for the sake of alarming the country 
on the approach of an enemy. It was 2 spe- 
ties of grand serjeanty. Bac, Abr. “Ten- 
ure,” N. 


CORNER. A combination among the 
dealers in a specific commodity, or outside 
eapitulists, for the purpose of buying up the 
greater portion of that commodity which is 
upon the market or may be brought to mar- 
ket, and holding the same back from sale, un- 
til the demand shall so far outrun the lim- 
ited supply as to advance the price abnor- 
mally. 72 Pa, St. 158; 101 Mass. 145. 

In surveying. An angle made by two 
boundary lines; the common end of two 
boundary lines, which run at an angle with 
each obher. 


CORNET. A commissioned officer of 
cavalry, ubolished in England in 1871, and 
not existing in the United States army. 


CORODIO HABENDO. The nameofa 
writ toexact a corody of an abbey or religious 
house. 


CORODIUM. In old English law. 
corody. 


A 


ly used to designate the person charged with, 


207 


CORONATORE EXONERANDO 


CORODY. Inold Englishlaw. A sum 
of money or allowance of meat, drink, and 
clothing due to the crown from the abbey or 
other religious louse, whereof it was founder, 
towards the sustentation of such one of its 
servants as is thought fit to receive it. It 
differs from a pension, in that it was allowed 
towards the maintenance of any of the king’s 
servants in an abbey; a pension being given 
to one of the king’s chaplains, for his better 
maintenance, till he may be provided with a 
benefice. Fitzh. Nat. Brev. 250. See 1 Bl. 
Comm. 283. 


COROLLARY. In logic. A collateral 
or secondary consequence, deduction, or in- 
ference. 


CORONA. Thecrown. Placita corona; 
pleas of the crown; criminal actions or pro- 
ceedings, in which the crown was the prose- 
cutor. 


CORONA MALA. In old English law. 
The elergy who abuse their character were 
socalled. Blount. 


CORONARE. In old records. To give 
the tonsure, which was done on the crewn, 
or in the form of a crown; to make a man a 
priest. Cowell. 


CORONARE FILIUM. To make one’s 
son a priest. Homo coronatus was one Who 
had received the first tonsure, as preparatory 
to superior orders, and the tonsure was in 
form of a corona, or crown of thorns. Cowell. 


CORONATION OATH. The oath ad- 
ministered to a sovereign at the ceremony of 
crowning or investing him with the insignia 
of royalty, in acknowledgment of his right 
to govern the kingdom, in which he swears 
to observe the laws, customs, and privileges 
of the kingdom, and to act and do all things 
conformably thereto. Wharton. 


CORONATOR. 
Spelman. 


COROWATORE ELIGENDO. The 
name of a wril issued to the sheriff, com- 
manding him to proceed to the election of a 
coroner. 


COROWNATORE EXONERANDO. In 
Enslish law. The name of a writ for the 
removal of a coroner, for a cause which is to 
be therein assigned, as that he is engaged in 
other business, or incapacitated by years or 
sickness, or has not a sifficient estate in the 
county, or lives in an inconvenient part of it, 


A coroner, (q. %.) 


CORONER 


CORONER. ‘The naine of an ancient of- 
ficer of the common law, whose office and 
functions are continued in modern English 
and American administration. The coroner 
is an officer belonging to each county, and is 
charged with duties both judicial and minis- 
terial, but chiefly the former. It is his spe- 
cial provinee and duty to make inquiry into 
the causes and circumstances of any death 
happening within his territory which occurs 
through violence or suddenly and with marks 
of suspicion. This examination (called the | 
“coroner’s inquest”) is held with a jury of 
proper persons upon view of the dead body. 
See Gract. fol. 121; 1 Bl. Comm. 346-348; 3 
Steph. Comm. 33. In England, another 
branch of his judicial office is to inquire con- 
cerning shipwrecks, and certify whether 
wreck or not, and who is in possession of the 
yoods; and also to inquire concerning treas- 
ure trove, who were the finders, and where 
it is, and whether any one be suspected of 
having found and concealed atreusure. 1 
Bl. Comm. 849. It belongs tothe ministerial 
office of the coroner to serye writs and other 
process, and generally to discharge the du- 
ties of the sheriff, in case of the incapacity 
of that officer or a vacancy in his office. 


COROWNER’S COURT. In England. 
A tribunal of record, where a coroner holds 
his inquiries. 


CORPORAL. Relating to the body; 
bodily. Should be distinguished from cor- 
poreal, (qg. 2.) 

A non-commissioned officer of the lowest 
grade in a company of soldiers in the army. 


CORPORAL OATH. An oath, the ex- 
ternal solemnity of which consists in laying 
one’s hand upon the Gospels while the oath 
is administered to him. More generally, a 
solemn oath, 

The terms “corporal oath” and “solemn oath” 
are, in Indiana, at least, used synonymously; and 
an oath taken with the uplifted hand may be prop- 
erly described by either term. 1 Ind. IS4, 


CORPORAL TOUCH. Bodily touch; 
actual physical contact; manual apprehen- 
sion. 


CORPORALE SACRAMENTUM, 
old English law. <A corporal oath. 


In 


Corporalis injuria non recipit sesti- 
mationem de futuro. A personal injury 
does not receive satisfaction from a future 
course of proceeding, [is not left for its sat- | 
isfaction to a future course of proceeding. | 
Bac. Max. reg. 6; Broom, Max. 278. 


278 


CORPORATION 


CORPORATE. Belonging to a corpe 
ration; as a corporate name. E 
as a corporate body. 


CORPORATE NAME. When a corpo- 
ration is erected, a name is always given to 
it, or, Supposing none to be actually given, 
will attach to it by implication, and by that 
naine alone it must sue and be sued, and do 
all legal acts, though a very minute variation 
therein is not material, and the name is cas 
pable of being changed (by competent au- 
thority) without affecting the identity or ca- 
pacity of the corporation. Wharton, 


CORPORATION. A franchise possessed 
by one or more individuals, who subsist as a 
body politic, under a special denomination, 
and are vested by the policy of the law with 
the capacity of perpetual succession, and of 
acting in several respects, however numer- 
ous the association may be, as a single indi- 
vidual, 2 Kent, Comm. 267. 

An artificial person or being, endowed by 
law with the capacity of perpetual succes- 
sion; consisting either of a single individnal, 
(termed a “corporation sole,” ) or of a collec- 
tion of several individuals, (which is termed 
a “corporation aggregate.”) 3 Steph. Comm, 
166; 1B). Comm. 467, 469. 

A corporation is an intellectual body, cre 
ated by law, composed of individuals united 
under a common name, the members of which 
sueceed each other, so that the body contin- 
ues always the same, notwithstanding the 
change of the individuais who compose it, 
and which, for certain purposes, is considered 
a natural person. Civil Code La. art. 427. 

A sorporation is an artificial person cre- 
ated by law for specific purposes, the limit 
of whose existence, powers, and liabilities is 
fixed by the act of incorporation, usually 
called its “charter.” Code Ga. 1882, § 1670, 

Classification. According to the accepted 
classification of corporations, they are first di- 
vided into public and private. 

A public corporation is one having for its 
object the administration of a portion of the 
powers of government delegated to it for 
that purpose; such are municipal corpora: 
tions, All others are private. Code Ga. 
1882, § 1672. 

Corporations are either public or private. Pub- 
lie corporations are formed or organized for the 
government of a portion of the state; all other cor- 
porations are private. Civil Code Cal. § 284. 

Public corporations are generally esteemed such 
as exist for political purposes only, such as towns, 
cities, parishes, and counties; and in many re- 
specis they are 30, although they inyolve some pri- 
vate interest; but, strictly speaking, public cor- 


CORPORATION 


porations are such only as are founded by the gov- 
ernment for public purposes, where the whole 
interests belong also to the government. If, 
therefore, the foundation be private, though under 
the charter of the government, the corporation is 
private, however oxtensive the uses may be to 
which it is devoled, either by the bounty of the 
founder or the nature and objects of the institu- 
tion. The uses may, in a certain sense, be called 
“publie, ” but the corporations are private, as much 
80, indeed, as if the franchises were vested in a 
single person. 4 Wheat. 515, 562; 1 Wali. Jr. 275. 

All private corporations are divided into 
ecclesiastical and lay; the former are such 
as are composed of religious persons organ- 
ized for spiriftial purposes, or for administer- 
ing property held for religious uses; the lat- 
ter are such as exist for secular or business 
purposes. 

Lay corporations are classified as eleemosy- 
nary or civil; the former are such as are 
created for the distribution of charities or for 
purposes falling under the head of “chavita- 
ble” in its widest sense, e. g., hospitals, asy- 
lums, colleges; the latter are organized for 
the facilitating of business transactions and 
the profit of the members. 

Corporations are also classed as aggregate 
or sole; as to this division, see CORPORATION 
AGGREGATE; CORPORATION SOLE. 


CORPORATION ACT. In English 
law. The statute 13 Car. IT. St. 2, ¢. 1; by 
which it was provided that no person should 
thereafter be elected to office in any corporate 
town that should not, within one year pre- 
viously, have taken the sacrament of the 
Lord’s Supper, according to the rites of the 
Church of England; and every person so 
elected was also required to take the oatlis of 
alleviance and supremacy. 3 Steph. Comm, 
103, 104; 4 Bl. Comm. 58. This statute is 
now repealed. 4 Steph. Comm. 511. 


CORPORATION AGGREGATE, A 
collection of several individuals united into 
one body, under a special denomination, and 
having perpetual succession under an arti- 
ficial form, and vested by the policy of the 
Jaw with the capacity of acting in several 
respects asanindividual. Shelf. Mortm. 22; 
1 Kyd, Corp. 13; 2 Kent, Comm. 267. 

An aggregate corporation, at common law, is a 
collection of individtials, united into one collective 
body, under & special name, and possessing cer- 
tain immunities, privileges, and capacities, in its 
collective character, which do not belong to the 
natural persons composing it. It is an artificial 
person, existing in contemplation of law, and en- 
dowed with certain powers and franchises, which, 
though they must be exercised through the medi- 
um of its natural members, are yet considered ag 
subsisting in the corporation itself, as distinctly 
asifit werearcal personage. 4 Wheat. 518, 561. 


279 


eS 
ne. a 


CORPOREAL PROPERTY 


CORPORATION COURTS. Certain 
eourts in Virginia described as follows: “For 
each city of the state, there shall be a court 
called a ‘corporation court,’ to be held by a 
judge, with like qualilications and elected in 
the same manner as judges of the county 
ecurt.” Code Va. 1887, § 3050. 


CORPORATION SOLE. <A corporation 
consisting of one person only, and his sue- 
cessors in some particular station, who ave 
incorporated by law in order to give them 
some legal capacities and advantages, par- 
ticularly that of perpetuity, which in their 
natural persons they could not have had. In 
this sense, the sovereign in England is a sole 
corporation, so is a bishop, so are some deans 
distinct from their several chapters, and so is 
every parson and vicar. 38 Steph. Comm. 
168, 169; 2 Kent, Comm. 273. 

A corporation sole consists of a single person, 
who is made a body corporate and politic, in order 
to give him some legal capacities and advantages, 


aud especially that of perpetuity; as a bishop, 
dean, ete. 7 Abb. Pr. 184; 22 Pick, 122. 


CORPORATOR. A member of a corpo- 
ration aggregate. Grant, Corp. 48. 


CORPORE ET ANIMO. Lat. By the 
bedy and by the mind; by the physical act 
and by the mental intent. Dig. 41, 2,3, 


CORPOREAL. A term descriptive of 
such things as have an objective, material 
existence; perceptible by the senses of sight 
and touch; possessing areal body. Opposed 
to incorporeal and spiritual. 

There is a distinction between “corpureal” and 
“corporal.” The former term means “possessing 
a body,” that is, tangible, physical, material; the 
latter means “relating to or aifecting a body, ” that 
is, bodily, external. Corporeal denotes the nature 
or physical existence of a body; corporal denotes 
its exterior or the co-ordination of it with some 
other body. Hence we speak of “corporeal here- 
ditaments,” butof “corporal punishment, "“corpo- 
ral touch, ” “corporal oath, ” eto. 


CORPOREAL HEREDITAMENTS. 
Substantial permanent objects which may be 
jnherited. The term “land” will include all 
such. 2 G1. Comm. 17. 


CORPOREAL PROPERTY. Such as 
affects the senses, and may be seen and 
handled by the body, as opposed to incorpo- 
real property, whieh cannot be seen or hand- 
led, and exists only in contemplation. Thus 
a house ia corporeal, but the annual rent 
payable for its occeupation is incorporeal. 
Corporeal property is, if movable, capable of 
| manual transfer; if immovable, possession 
| of it may be delivered up. But incorporeal 


CORPS DIPLOMATIQUE 


property cannot be so transferred, but some 
other means must be adopted for its transfer, 
of which the most usual is an instrument in 
writing. Mozley & Wiitley. 


CORPS DIPLOMATIQUE. In inter- 
nationullaw. Ambassadors and diplomatic 
persons at any court or capital. 


CORPSH. The dead body of a human 
being. 
CORPUS. (Lat.) Body; the body; an 


aggregate or mass, (of men, laws, or articles;) 
physical substance, as distinguished from in- 
tellectual conception; the principal sum or 
capital, as distinguished from interest or in- 
eome. 

A substantial or positive fact, as distin- 
guished from what is equivocal and ambigu- 
ous. The corpus deliclé (body of an offense) 
is the fuct of its having been actually com- 
mitted. Best, Pres. 269-279. 

A corporeal act of any kind, (as distin- 
guished from animus or mere intention,) on 
the part of him who wishes to acquire a 
thing, whereby he obtains the physical abil- 
ity to exercise his power over it whenever he 
pleases. Tho word occurs frequently in this 
sense in the civillaw. Mackeld. Rom. Law, 
§ 248. 


CORPUS CHRISTI DAY. In English 
law. <A feast instituted in 1264, in honor of 
the sacrament, 32 Hen. VIII. ¢. 21, 


CORPUS COMITATUS. The body ofa 
county. The whole county, as distinguished 
from a part of it, or any particular place in 
it. 5 Mason, 290, 


CORPUS CORPORATUM. A corpora- 
tion; a corporate body, other than municipal. 


CORPUS CUM CAUSA. (The body 
with the cause.) An Inglish writ which is- 
sued out of chancery, to remove both the body 
and the record, touching the eause of any man 
lying in execution upon a judgment for debt, 
into the king’s bench, there to remain until 
he satisfied the judgment. Cowell; Blount. 


CORPUS DELICTI. The body of a 
erime. The body (material substance) upon 
which a crime has been committed, e. g., the 
corpse of a murdered man, the charred re- 
mains of a house burned down, Inaderiva- 
tive sense, the substance or foundation of a 
erime; the substantial fact that a crime has 
been committed. 


Corpus humanum non recipit sesti- 
mationem. The human body does not ad- 
mit of valuation. IIob. 59. 


280 


CORRELATIVE 


CORPUS JURIS. A body of law. A 
term used to signify a book comprehending 
several collections of law. There are two 
principal collections to which this name is 
given; the Corpus Juris Civilis, and the 
Corpus Juris Canonici, (q. v.) 


CORPUS JURIS CANONICI. The 
body of thecanon law. A compilation of the 
eanon law, comprising the decrees and can- 
ons of Lhe Roman Church, constituting the 
bedy of ecclesiastical law of that church. 


CORPUS JURIS CIVILIS. The body 
of the civil law. The system of Roman ju- 
risprudence compiled and codified under the 
dircction of the emperor Justinian, in A. D, 
525-534. This collection comprises the In- 
stitutes, Digest, (or Pandects,) Code, and 
Novels. The name is said to have been first 
applied to this collection early in the seven- 
teenth century. 


CORPUS PRO CORPORE. Lat. In 
old records. Body for body. A phrase ex- 
pressing the liability of manucaptors. 8 How, 
State Tr. 110. 


CORRECTION. Discipline; chastise 
ment administered by a master or other per- 
son in authority to one who has committed 
an offense, for the purpose of curing his 
faults or bringing him into proper subjee- 
tion. 


CORRECTION, HOUSE OF. A pris 
on for the reformation of petty or juvenile 
offenders. 


CORRECTOR OF THE STAPLE. In 
old English law. A clerk belonging io the 
staple, to write and record the bargains of 
merchants there made. 


CORREGIDOR. In Spanish law. A 
magistrate who took cognizance of various 
misdemeanors, and of civil matters. 2 White, 
New Recop. 53. 


CORRE. Lat. In the civil law. 
stipulators; joint stipulators, 


Co- 


CORREI CREDENDI. Lat. In the - 
civil and Seotch law. Joint creditors; cred- 
ilors in solido. Poth. Obl. pt. 2, c. 4, art. 3, 
$11. 

CORREI DEBENDI. Lat. In Scotch 


law. ‘Two or more persons bound as princi- 
pal debtors to another. Ersk. Inst. 3, 3, 74. 


CORRELATIVE. Having a mutual or 
reciprocal relation, in such sense that the 
existence of one necessarily implies the ex- 


CORRESPONDENCE 


Father and som are 
Right and duty are cor- 


a of the other. 
ive terms. 
terms. 


RRESPONDENCH. Interchange of 
ritten cointmuniecations. ‘Phe letters writ- 
by a person and the answers wrilten by 
one to whom they are addressed. 


CORROBORATE. To strengthen; to 
d weight or credibility te a thing by addi- 
al and confirming facts or evidence. 
J ‘The expression “corroborating circumstances” 
wiearly does not mean facts which, independent of 
acoufession, wil warrent a conviction; for then 
‘the verdict would stand not on the confession, but 
upon those independent circumstances, To cor- 
roborate is to strengthen, to confirm by additional 
security, to add strength, The testimony of a 
‘witness is said to be corroborated when it is shown 
$0 torrespond with the representation of some oth- 
‘or witness, or to comport with somo facts other- 
wise known or established. Corroborating cir- 
‘dinustanves, then, used in reference to a conles- 
‘sion, are such as serve to strengthon it, to render 
It more probabie; such, in short, as may serve to 
impress a jury with a belief in its truth. 10N. J. 
Law, 163. 

Corruptic optimi est pessima. Corrup- 
tion of the best is worst. 


CORRUPTION.  Illegality; a viciovs 
and fraudulent tntention to evade the prohi- 
Pitions of the law. 

The act of an official or fiduciary person 
who unlawfully and wrongfully uses his sta- 
won or character to procure some benelil for 
himself or for another person, contrary to 
duty and the rights of others. 


CORRUPTION OF BLOOD. In En- 
glish law. This was the consequence of at- 
tainder. It meant that theattainted person 
fould neither inherit lands or other heredita- 
ments from his ancestor, nor retain those he 
already had, nor transinit them by deseent to 
any heir, because his blood was considered 
Inijiaw to be corrupted. This was abolished 
by St.3 & 4 Wm. LV. ¢. 106, and 33 & 34 
Viet. c. 28: and is unknown in America, 
Const. U7, S. art. 3, § 8. 


CORSELET. 
covered the body, 


CORSE-PRESENT. A mortuary, thus 
termed because, when a mortuary became 
due on the death of a man, the best or sec- 
ond-best beast was, according to custem, 
offered or presented to the priast, and carried 
with the corpse. In Wales a corse-present 
was die upon the death of a clergyman to 
the bishop of the diocese, till abolished by 
12 Anne St.2,c.6. 2 Bil. Comm. 426. 


Ancient armor which 


281 


cass 


CORSNED, In Saxon law. The morsel 
of execration. A species of ordeal in use 
among the Saxons, performed by eating a 
picce of bread over which the priest had 
pronounced a certuin imprecation. if the 
acctised ate it freely, he was pronounced in- 
nocént; but, if it stuck in his throat, it was 
considered ag a proof of his guilt. Crabb, 
Eng. Law, 30; 1 Reeve, Eng. Law, 21; 4 Bl. 
Comm. 545. 


CORTES. The name of the legislative 
assemblies, the parliament or congress, of 
Spain and Portugal. 

CORTEX. The bark of a trea; the outer 
covering of anything. 

CORTIS, <A court or yard beforea house, 
Blount. 


CORTULARIUM, or CORTARIUM. 
In old records, A yard adjoining a country 
farm. A 


CORVER. In French law. Gratuitous 
labor exacted from the villages or commu- 
nities, especially for repairing roads, con- 
structing bridges, ete, 


COSA JUZGADA. InSpanishlaw. A 
canse or matter adjudged, (res judicata.) 
White, New Recop. b. 3, tit. 8, note, 


COSDUNA. 
or tribute. 


COSEN, COZEN. 


In feudal law. A eustom 


In old English law, 


To cheat. “A cosening knave.” 3 Leon, 
TP 
COSENAGE. Inold Englishlaw. Kin- 


dred; cousinship. Also a writ that lay for 
the heir where the tresai/, 7. 2, the father of 
the besail, or great-grandfather, was seised 
of lands in fee at his death, and a stranger 
enlered upon the Jand and abated. Fitzh. 
Nat. Brey. 221, 


COSENING. Inold English law. An 
offense, mentioned in the oid books, where 
anything was done deceitfully, whether be- 
longing to contracts or not, which could not 
be properly termed by any specialnume, The 
same as the stelZionaius of the civil law. 
Cowell, 


COSHERING. Inold English law. A 
feudal prerogative or custom for lerds to lie 
and feast themselves at their tenants’ houses. 
Cowell. 


COSMUS. Blount. 


COSSs. <A term used by Europeans in In- 
dia to denote a road-measure of about twa 


Clean. 


cost 


miles, but differing 
Wharton. 


COST. The cost of an article purchased 
for exportation is the price paid, with all in- 
cidentaul charges paid at the place of experta- 
tion. 2 Wash.C. C. 493, Cost price is that 
actually paid for goods. 18 N. Y. 337. 


COST-BOOK. A book in which a num- 
ber of adventurers who have obtained per- 
mission to work a lode, and haye agreed to 
share the enterprise in certain proportions, 
enter the agreement, and from time to time 
the receipts and expenditures of the mins, 
the names of the shareholders, their respect- 
ive accounts with the mine, and transfers of 
shares. These associations are called “Cost- 
Book Mining Companies,” and are governed 
by the general law of partnorship. Lindl. 
Partn. *147, 


CO-STIPULATOR. A joint promisor. 


COSTS. A pecuniary allowance, made to 
the successfu] party, (and recoverable from 
the losing party,) for his expenses in prose- 
cuting or defending a suit ora distinct pro- 
ceeding within a suit. 

Costs and fees were originally altogether differ- 
ent in their nature. The oneis an allowance to a 
party for expenses incurred in prosecuting or de- 
fending a suit; the other, a compensation to an 
officer for services rendered in the progress of a 
eause. Therefore, while an executor or adminis- 
trator was uot personally liable to his adversary 
for costs, yet, if at his imstance an officer per- 
formed services for him, he had a personal demand 
for his fees. 11 Serg. & K. 247. There is in our 
statute a manifest difference between costs and 
fees iu another respect. Costsarean allowance to 
a party for the expenses incurred in prosecuting 
or defending a suit,—an incident to the judgment; 
while fees are compensation to {public officers for 
services rendered individuals not in the course of 
litigation. 58 Ala. 579. 

In England, the term is also used to desig- 
nate the charges which an attorney or solic- 
itor is entitled to make and recover from his 
client, as his remuneration for professional 
services, such as legal advice, attendances, 
drafting and copying documents, conduct- 
ing legal proceedings, ete. 


COSTS DE INCREMENTO.  In- 
creased costs, costs of increase. Costs ad- 
judged by the court in addition to those as- 
sessed by the jury. 13 How. 372. 

Those extra expenses incurred which do 
not appear on the face of the proccedings, 
such as witnesses’ expenses, fees to counsel, 
attendances, court fees, ete. Wharton. 


COSTS OF THE DAY. Costs which 
are incurred in preparing for the trial of a 


in different parts. 


282 


COTTIER TENANCY 


cause on a specified day, consisting of wit 
nesses’ fees, and other fees of attendance. 
Archb. N. Prac. 281. 


COSTUMBRE. In Spanish law. 
tom; an unwritten law established by usage, 
during a long space of time, Las Partidas, 
pt. 1, tit. 2, 1. 4. 


CO-SURETIES. Joint sureties; two or 
More sureties to the same obligation. 


COTA, Acotorhut, Blount. 


COTAGIUM. In old English law. A_ 
cottage, 


COTARIUS. In old English law. A 
cottager, who held in free socage, and paida 
stated fine or rent in provisions or money, 
with some occasional personal services. 


COTERELLI. Anciently, a kind of 
peasantry who were outlaws; robbers, — 
Blount. 


COTERELLUUS. In feudallaw. A 
servile tenant, who held in mere villenage; 
his person, issue, and goods were disposable 
at the lord’s pleasure. 


COTERIE. A fashionable association, or 
a knot of persons forming a particular circle, 
The origin of the term was purely commer- 
cial, signifying an association, in which each 
member furnished his part, and bore his share 
in the profit and loss. Wharton. 


COTESWOLD. Inoldrecords. A placa 
where there is no wood. 
COTLAND. In old English law. Land 


held by a cottager, whether in socage or vil- 
lenage. Cowell. 


COTSETHLA. In old Englishlaw. The 
little seat or mansion belonging to a small 
farm. 


COTSETHLAND. The seat of a cottage 
with the land belonging toit. Spelman. 


COTSETUS. A cottager or cottage-hold- 
er who held by servile tenureand was bound 
to do the work of the lord. Cowell. 


COTTAGE. In English law. A small 
dwelling-louse that has no land belonging to 
it. Shep. Touch. 94; 1 Strange, 405; 2 La. 
Raym. 1015; 15 Ad. & EL. (N. S.) 244. 


COTTIER TENANCY. A species of 
tenancy in Ireland, constituted by an agree 
ment in writing, and subject to the follow- 
ing terms: That the tenement consist of a 
dwelling-heuse with not more than half an 
acre of land; at a rental not exceeding £5 a 


COTUCA 


year; the tenancy to be for not more than a 
month at atime: the landlord to keep the 
housein good repair. Landlord and Tenant 
Act, Ireland, (23 & 24 Vict. ¢. 154, § 81.) 


COTUCA, Coat armor. 


COTUCHANS. A tern; used in Domes- 
day for peasants, boors, husbandmen. 


COUCHANT. Lying down; squatting. 
Couchant and levant (lying down and rising 
up) is a term applied to animals trespassing 
on the land of one other than their owner, 
for one night or longer. 3 Gl. Comm. 9. 


COUCHER, or COURCHER. A factor 
who continues abroad for tratlic, (37 Edw. 
IIL. ec. 16;) also the general book wherein any 
corporation, ete., register their acts, (3 & 4 
Edw. V1. c. 10.) 


COUNCIL. An assembly of persons for 
the purpose of concerting measures of state 
or municipal policy; hence called ‘“coun- 
cillors.” 

In American law. The legislative body 
in the government of cities or boroughs. An 
advisory body selected to aid the executive. 


COUNCIL OF CONCILIATION. By 
the Act 30 & 31 Vict. c. 105, power is given 
for the crown to grant licenses for the for- 
mition of councils of conciliation and arbi- 
tration, consisting of a certain number of 
masters and workmen in any trade or em- 
ployment, having power to hear and deter- 
mine all questions between masters and 
workmen which may be submitted to them 
by both parties, arising out of or with respect 
to the particular trade or manufacture, and 
incapable of being otherwise settled, They 
have power to apply to a justice to enforce 
the performance of their award. The mem- 
bers are elected by persons engaged in the 
trade. Davis, Bldg. Soc. 232; Sweet. 


COUNCIL OF JUDGES. Under the 
English judicature act, 1873, § 75, an annual 
council of the judges of the supreme court is 
to be held, for the purpose of considering the 
operation of the new practice, offices, ete., in- 
trodueed by the act, and of reporting to a sec- 
retary of state as to any alterations which 
they consider should be made in the law for 
the administration of justice, An extraor- 
dinary council may also be convened at any 
time by the lord chancellor. Sweet. 


COUNCIL OF THE NORTH. Acourt 
instituted by Henry VIII, in 1537, to ad- 
minister justice in Yorkshire and the four 
other northern counties. Under the presi- 


233 


COUNSELLOR 


dency of Stratford, the court showed great 
rigor, bordering, it is alleged, on harshness. 
It was abolished by 16 Car. I., the same act 
which abolished the Star Chamber. Brown. 


COUNSEL. I. In practice. An advocate, 
counsellor, or pleader. 3 Bl. Comm. 26; 1 
Kent, Comm. 307. One who assists his cli- 
ent with advice, and pleads for him in open 
court. See COUNSELLOR. 

Counsellors who are associated with those 
regularly retained in a cause, either for the 
purpose of advising as to the points of law 
involved, or preparing the case on its legal 
side, or arguing questions of law to the court, 
or preparing or conducting the case on its 
appearance before an appellate tribunal, are 
siid to be “of counsel.” 

2. Knowledge. A grand jury is sworn to 
keep secret “the commonwealth’s counsel, 
their fellows’, and their own.” 

3. Advice given by one person to another 
in regard to 4 proposed line of conduct, claim, 
or contention. 


COUNSEL’S SIGNATURE. This is 
required, in some jurisdictions, to be affixed 
to pleadings, as affording the court a means 
of judging whether they are interposed in 
good faith and upon legal grounds. 


COUNSELLOR. An advocate or barris- 
ter. A member of the legal profession whose 
special function is to give counsel or advice as 
to the legal aspects of judicial controversies, 
or their preparation and management, and to 
appear in court for the conduct of trials, or 
the argument of canses, or presentation of 
motions, or any other legal business thas 
takes him into the presence of the court. 

Tn some of the states, the two words “coun- 
sellor” and “attorney” are used interchange- 
ably to designate all lawyers. In others, the 
latter term alone is used, “counsellor” not 
being recognized as a technical name. In 
still others, the two are associated tozether 
as the full legal litle of any person whe has 
been admitted to practice in the courts; 
while in a few they denote different grades, 
it being prescribed that no one can become a 
counsellor until he has been an attorney for 
a specified time and has passed a second ex- 
amination. 

In the practice of the United States su- 
preme court, the term denotes an officer who 
is employed by a party in a cause to conduct 
the same on its trial on his behalf, He 
differs from an attorney at law. 

In the supreme court of the United States, 
the two degrees of atLorney and counsel were 


COUNT 


at first kept separate, and no person was per- 
mitted to practice in both capacities, but the 
present practice is otherwise. Weeks, Attys. 
at Law, 54, It is the duty of the counsel to 
draft or review and correct the special plead- 
ings, to manage the cause on trial, and, dure 
ing the whole course of the suit, to apply es- 
tablished principles of law to the exigencies 
of the case. 1 Kent, Comm. 307. 


COUNT, ». In pleading. To declare; to 
recite; to state a case; to narrate the facts 
constituting a plaintiff's cause of action. In 
& special sense, to set out the claim or count 
of the demandant in a real action. 


To plead orally; to plead or argue a casein | 


court; to recite or read in court; to recite a 
count in court. 


COUNT, 2. In pleading. The different 
parts of a declaration, each of which, if it 
stoud alone, would constitute a ground for 
action, are the counts of the declaration, 
Used also to signify the several parts of an 
indictment, each charging a dislinct offense. 


COUNT. (Fr. comte; 
comes.) An earl. 


from the Latin 


COUNT AND COUNT-OUT. These 
words have a technical sense in a count of 
the house of commons by the speaker, 


COUNT-OUT. Forty members form a 
house of commons; and, though there be ever 
so many at the beginning of a debate, yet, if 
during the course of it the house should be 
deserted by the members, till reduced below 
the number of forty, any one member tnay 
have it adjourned upon its being counted; 
but adebale may be continued when only one 
member is left in the house, provided no one 
choose to move an adjournment. Wharton. 


COUNTEE. In old English law. The 
most eminent dignity of a subject before the 
Conquest. He was prefectus or prepostius 
comitatus, and had the charge and custody of 
the county; but this authority is now vested 
in the sheriff. 9 Coke, 46, 


COUNTENANCE. In old English law. 
Credit; estimation. Wharton. 


COUNTER. The name of two prisons 
formerly standing in London, but now de- 
molished. They were the Poultry Counter 
aud Wood Street Counter. 


COUNTER-AFFIDAVIT. Anaffidavit 
made and presented in contradiction or oppo- 
sition to an adidavit which is made the basis 
or support of a motion or application. 


234 


COUNTERFEITER 


COUNTER-BOND. Inold practice. A 
bond of indemnity. 2 Leon. 90. 


COUNTER-CLAIM. Aclaim presented 
by a defendant in opposition to or deduction 
from the claim of the plaintiff, A species of 
set-off or recoupment introduced by the eodus 
of civil procedure in several of the states, of 
a broad and liberal character. 

A counter-claim must be one “existing in 
favor of a defendant and against a plaintiff, 
between whom a several judgment might be 
had in the action, and arising out of one of 
the following causes of action: (1) A eanse 
of action arising out of the contract or trans- 
action set forth in the complaint as the foun- 
dation of the plaintiff’s claim, or connected 
with the subject of action; (2) in an action 
arising on contract, any other cause of ac. 
tion arising also on contract, and existing 
at the commencement of the action.” Code 
Proc. N. ¥. § 150. 

The term “counter-claim,” of itself, importa a 
claim opposed to, or which qualifies, or at least in 
some degree affects, the plaintiff’s cause of action, 
35 Wis. 626, 

A counter-claim is an opposition claim, or de- 
mand of something due; a demand of something 
which of right belongs to the defendant, in oppo- 
sition to the right of the plaintiff, 8 How. Pr. 122, 

A counter-claim is that which might have arisea 
out of, or could have had some connection with, 
the original transaction, in view of the parties, and 
which, at the time the contract was made, they 
could have intended might, in some event, give 
one party a claim against the other for compliance 
or non-compliance with its provisions. 7% Ind. 523, 
524, 

COUNTER-DEED. A secret writing, 
either before a notary or under a private seal, 
whieh destroys, invalidates, or alters a pub- 
lic one. 


COUNTERFEIT. Ineriminallaw. To 
forge; to copy or imitate, without authority 
or right, and with a view to deceive or de 
fraud, by passing the copy or thing forged 
for that which is original or genuine. Most 
commonly applied to the fraudulent and crim- 
inal imitation of money. 


COUNTERIEIT COIN. Coin not gen- 
uine, but resembling or apparently intended 
to resemble or pass for genuine coin, includ- 
ing genuine coin prepared or altered so as to 
resemble or pass for coin of a higher denomi- 
nation. 


COUNTERFEITER. In criminal law. 
One who unlawfully makes base coin in 
imitation of the true metal, or forges false 
currency, or any instrument of writing, bear- 
ing a likeness and similitude to that which ig 


COUNTER-FESANCE 


lawful and genuine, wilh an intention of de- 
ceiving and imposing upon mankind. 1 
Stew. (-Ala.) 384, 


COUNTER-FESAWCE. The act of 


forging. 


COUNTER-LETTER. A species of in- 
strument of defeasance common in the civil 
law. It is executed by a party who has 
taken adeed of property, absolute on its face, 
but intended as security for a loan of money, 
and by it heagrees to reconvey the property 
on payment of a specified sum. The two 
instruments, taken together, constitute what 
ig known in Louisiana as an “antichresis,” 
(q- 2) 


COUNTERMAND. A changeorrevoca- 
tion of orders, authority, or instructions pre- 
viously issued. It may be either express or 
implied; the former where the order or in- 
struction already given is explicitly annulled 
or recalle|; the latter where the party's con- 
duct is incompatible with the further con- 
tinuance of the order or instruction, as 
where a new order is given inconsistent 
with the former order. 


COUNTER-MARK. A sign put upon 
goods already marked; also the several marks 
put upon goods belonging to several persons, 
to show that they must not be opened, but 
in the presence of all the owners or their 
agents. 


COUNTERPART. In conveyancing. 
The corresponding part of an instrument; a 
duplicate or copy. Where an instrument of 
conveyance, as a lease, is executed in parts, 
that is, by having several copies or duplicates 
wade and interchangeably executed, that 
which is executed by the grantor is usually 
called the “original,” and the rest are “coun- 
terparts;” although, where all the parties 
execute every part, this renders them all 
originuls. 2 Bl. Comm. 296; Shep. Touch. 
50. See DuPLicaTe. 


COUNTER-PLEA. In pleating. <A 
plea to some niatter incidental to the main 
ouject of the suil, and out of the direct line 
of pleadings, 

In the more ancient system of pleading, 
conuter-plea was applied to what was, in ef- 
fect, a replication to aid prayer, (q. v.;) that 
is, Where a tenant for life or other limited 
interest in land, having an action brought 
against him in respect to the title to such 
land, prayed in aid of the lord or reversioner 
for his better defense, that which the de- 


285 


COUNTY 


mandant alleged against cifher request was 
ealled a “counter-plea.” Cowell. 


COUNTER-ROLLS, In English law. 
The rolls whieh sheriffs have wilh the core- 
ners, containing particulars of their pro- 
ceedings, as well of appeals as of inquests, 
etc. 3 Edw. I. c. 10. 


COUNTER-SECURITY. A security 
given to one who has entered into a bend or 
become surety for another; a countervailing 
bond of indemnity. 


COUNTERSIGN. ‘The signature of a 
secretary or other subordinate officer to any 
wriling signed by the principal or superior to 
vouch for the uuthenticity of it. 


COUNTERVAILING EQUITY. 
A contrary and balancing equity; an equity 
or right opposed to that which is songht to 
be enforced or recognized, and which ought 
not to be sacrificed or subordinated to the lat- 
ter, because it is of equal strength and jus- 
tice, and equally deserving of consideration. 


COUNTES. L. Fr. Count, or reckon. 
In old practice. A direction formerly given 
by the clerk of a court to the crier, after a 
jury was sworn, to number them; and which 
Blackstone says was given in his time, in 
good English, “count these,” 4 Bl. Comm. 
340, note (w.) 


COUNTORS. Advocates, or serjeants 
at law, whom aman retains to defend his 
eanse and speak fer him in court, for their 
fees. 1 Inst. 17. 


COUNTRY. The portion of the earth's 
surface occupied by an independent nation or 
people; or the inhabitants of such territory. 

In its primary meaning “country” signifies 
“slace;” and, in a larger sense, the territory or 
dominions ¢escupicd by a community; or even 
waste and unpeopled sections or regions of the 
earth. But its metaphorical meaning is no less 
definite and well understood; and in common par- 
lance, in historical and geographical writings, in 
diplomacy, legislation, treaties, and international 
codes, the word is employed to denote the popula- 
tion, the nation, the state, or the government, 
haviug possession and dominion over a territory. 
1 Blaichf. 218, 225; 5 N. ¥. Leg. Obs. 286, 

In pleading and practice. The inhab- 
itants of a district from which a jury is to be 
summoned; pais; a jury. 38 Bl. Comm. 349; 
Steph. PL. 73, 78, 230. 


COUNTY. The name given to the prin- 
cipal subdivisions of the kingdom of Eng- 
land and of most of the states of the Ameri- 
can Union, denoting a distinct portion of 

| territory organized by itself for political 


=e 


Hi 


L 


COUNTY BRIDGE 


and judicial purposes. 
the word shows it to have been the dis- 
trict anciently governed by a count or 
ear], In modern use, the word may denote 
either the territory murked off to form a 
county, or the citizens resident within such 
territory, taken collectively and considered 
as invested with political rights, or the 
county regarded as a municipal corporation 
possessing subordinate governmental powers, 
or an organized jural society invested with 
specific rights and duties. 


COUNTY BRIDGE. A bridge of the 
larger class, erected by the county, and 
which the county is liable to keep in repair. 
40 Iowa, 295. 


COUNTY COMMISSIONERS. Offi- 
cers of a county charged with a variety of 
administrative and executive duties, but 
principally with the management of the 
financial affairs of the county, its police 
regulations, and. its corporate business. 
Sometimes the local laws give them limited 
judicial powers. In some states they are 
culled “supervisors.” 


COUNTY CORPORATE. A city or 
town, With more or less territory annexed, 
having the privilege to be a county of it- 
self, and not to be comprised in any other 


286 


The etymology of ' the charge and care of persons and estates 


county; such as London, York, Bristol, Nor- | 


wich, and other cities in England. 1 BI. 


Comm. 120. 


COUNTY COURT. A court of high 
antiquity in England, inctdent to the juris- 
diction of the sheriff. It is not a court of 
record, but may hold pleas of debt or dam- 
ages, under the value of forty shillings. 
The freeholders of the county {anciently 
termed the “suitors” of the court) are the 
real judges in this court, and the sheriff is 
the ministerial officer. See 3 Bl, Comm. 35, 
86; 3 Steph. Comm. 395. 

But in modern English law the name is 
appropriated to a system of tribunals estab- 


lished by the statute 9 & 10 Vict. c. 95, have | 


ing a limited jurisdiction, principally for the 
recovery of small debts. 

It is also the name of certain tribunals of 
limited jurisdiction in the county of Middle- 
sex, established under the statute 22 Geo. II. 
c. 33. 

In American law. The name is used in 
many of the slates to designate the ordinary 
eourts of record having jurisdiction for 
trials at nisi prius. Their powers gener- 
ally coraprise ordinary civil jurisdiction, also 


COURSE OF THE VOYAGE 


eoming within legal guardianship, a limited 
criminal jurisdiction, appellate jurisdiction 
over justices of the peace, etc. 


COUNTY PALATINE. A term be- 
stowed upon certain counties in England, 
the lords of which in former times enjoyed 
especial privileges. They might pardon 
treasons, murders, ind felonies. All writs 
and indictments ran in their names, as in 
other counties in the king’s; and all offenses 
were said to be done against their peace, and 
not, as in other places, contra pacem domint 
regis. ut these privileges have in modern 
times nearly disappeared. 


COUNTY RATE. In English law. An 
imposition levied on the occupiers of lands, 
and applied to many miscellaneous purposes, 
among which the most important are those 
of defraying the expenses connected with 
prisons, reimbursing to private parties the 
costs they have incurred in prosecuting pub- 
lie offenders, and defraying the expenses of 
the county police. See 15 & 16 Vict. ¢. 81. 


COUNTY-SEAT. A county-seat or 
county-town is the chief town of a county, 
where the county buildings and courts ara 
located and the county business transacted. 


COUNTY SESSIONS. In England, the 
court of general quarter sessions of the peace 
held in every county once in every quarter of 
ayear. Mozley & Whitley. 


COUPONS. Interest and dividend cer- 
tificates; also those parts of a commercial in- 
strument which are to be cut, and which are 
evidence of something connected with the 
contract mentioned in the instrument. They 
are generally attached to certificates of loan, 
where the interest is payable at particular 
periods, and, when the interest is paid, they 
are cut off and delivered tothe payer. Whar- 
ton. 


COUR DE CASSATION. Thesupreme 
judicial tribunal of Franee, having appellate 
jurisdiction only. Foran account of its com- 
position and powers, see Jones, French Bar, 
22; Guyot, Repert. Univ. 


COURIER. <An express messenger of 
haste. 


COURSH. A term used in surveying, 
meaning the direction of a line with refer- 
ence toa meridian. 


COURSE OF THE VOYAGE. By this 
term is understood the regular and customary 


COURSE OF TRADE 


track, if such there be, which a ship takes in 
going frow one port to another, and the short- 
est way. Marsh. Ins. 185. 


COURSE OF TRADE. What is cus- 
towarily or ordinarily done in the manage- 
ment of trade or business. 


COURT. In legisiation. A legislative 
assembly. Parliament is called in the old 
books a court of the king, nobility, and con- 
mons assembled. Finch, Law, b. 4, e. 1, p. 
#30; Fleta, lib. 2, ¢. 2. , 

This meaning of the word has been re- 
tuined in the titles of some deliberative bod- 
ies, such ag the general court of Massachu- 
Betts, (the legislature.) 


In international law, The person and 
auile of the sovereign; the place where the 
fovereign sojourns with his regal retinue, 
wherever that may be. The English govern- 
ment is spoken of in diplomacy as the court 
of St, James, because the palace of St. James 
is the official palace, 

In practice. An organ of the govern- 
ment, belonging to the judicial department, 
whose function is the application of the laws 
to controversies brought before it and the 
public administration of justice. 

The presence of a sufficient number of the 
members of such a body regularly convened 
iu an authorized place at an appointed time, 
engiged im the full and regular performance 
of its funetions. 20 Ala. 446; 20 Ark. 77. 

Agourt may be more particularly described as 
an organized body with defined powers, meeting at 
certain times and places for the hearing and decis- 
jon of causes and other matters brought before it, 
and aided in this, its proper business, by its proper 
ollicers, viz., attorneys and counsel to present and 
janagethe business, clerks to record and attestits 
acts and decisions, and ministerial ofticers to exe- 
eute its commands, and secure due order inits pro- 
veedings. Burrill. 

The place where justice is judicially ad- 
ministered. Co, Litt. 68a; 3 Bl. Comm. 23, 

The jude, or the body of judges, presiding 
ever a court, 

The words “court” and “judge, "or “judges, "are 
fraquently used in our statutes as synonymous. 
When used with reference to orders made by the 
court or judges, they are to be so understood. 3 
Ind. 239, 

The term “court” may be construed to mean the 
judyes of the court, or to include the judges and 
jury, according to the connection and the object of 
its use. 19 Vt. 478. 

Classification. Courts may be classified 
and divided according toseveral methods, the 
following being the more usual: 

Courts of record and courts not of record; 
the former being those whose acts and ju- 


287 


COURT-BARON 


dicial proceedings ure enrolled, or recorded, 
for a perpetual memory and testimony, and 
which have power to fine or imprison for 
contempt. Error lies totheir judgments, and 
they generally possess a seal. Courts not of 
reeord are those of inferior dignity, which 
have no power to fine or imprison, and in 
which the proceedings are not enrolled or re- 
corded. 

Superior and trferior courts; the former 
being courts of general original jurisdiction 
in the first instance, and which exercise a 
control or supervision over a system of lower 
courts, either by appeal, error, or certiorari; 
the latter being courts of smail or restricted 
jurisdiction, and subject to the review or cor- 
rection of higher courts. Sometimes tha 
former term is used to denote a particular 
group or system of courts of high powers, 
and all others are called “inferior courts.” 

To constitute a court a superior court as to any 
class of actions, within the common-law meaning 
of thatterm, its jurisdiction of such actions must 
be unconditional, so that the only thing requisite 
to enable the court to take cognizance of them is 
the acquisition of jurisdiction of the persons of the 
parties. 4 Bosw. 547. 

An inferior court is a court whose judgments or 
decrees can be reviewed, on appeal or writ of error, 


by a higher tribunal, whether that tribunal be the 
circuit or supreme court. 18 Ala, 521. 


Civil and criminal courts; the former be. 
ing such as are established for the adjudi- 
cation of controversies between subject and 
subject, or the ascertainment, enforcement, 
and redress of private rights; the latter, such 
as are charged with the administration of the 
criminal laws, and ithe punishment of wrongs 
te the public. 

Hquity courts and lav courts; the former 
being such as possess the jurisdiction of a 
chancellor, apply the rules and principles of 
chancery law, and follow the procedure in 
equity; the latter, such as have no equitable 
powers, but administer justice according to 
the rules and practice of the common law. 


As to the division of courts according to, 


their jurisdiction, see JURISDICTION, 


COURT-BARON. In English law. A 
court which, although not one of record, is in- 
cident to every manor, and cannot be severed 
therefrom. It was ordained for the mainte- 
nance of the services and duties stipulated for 
by lords of manors, and for the purpose of de- 
termining actions of a personal nature, where 
the debt or damage was under forty shillings, 
Wharton. 

Cuslomary court-baron is one appertaining 
entirely to copyholders. 


Ml 


COURT-BARON 


Freeholders’ court-baron is one held before 
the freeholders whe owe suit and service to 
the manor. It is the court-baron proper. 


COURT CHRISTIAN. The ecclesias- 
tical courts in England are often so called, as 
distinguished from the. civil courts. 1 Bl. 
Comm. 88; 3 Bl. Comin. 64; 3 Steph. Comm. 
420. 


COURT, CONSISTORY. Ses Consis- 
rory COURT. 


COURT FOR CONSIDERATION OF 
CROWN CASES RESERVED. A court 
established by St. 11 & 12 Vict. c. 78, composed 
of such of the judges of the superior courts of 
Westminster as were able to attend, for the 
zonsideration of questions of law reserved by 
any judge in a court of oyer and terminer, 
gaol delivery, or quarter sessions, before 
which a prisoner had been found guilty by 
verdict. Such question is stated in the form 
of a speeial case. Mozley & Whiteley; 4 
Steph. Comm. 442. 


COURT FOR DIVORCE AND MAT- 
RIMONTAL CAUSES. This court was 
established by St. 20 & 21 Vict. c. 35, which 
transferred to it all jurisdiction then exercis- 
able by any ecclesiustical court in England, 
in matters matrimonial, and also gave it new 
powers. ‘Ihe court consisted of the Jord 
chancellor, the three chiefs, and three senior 
puisne judges of the common-law courts, 
and the judge ordinary, who tugether consti- 
tuted, and still constitute, the “full court.” 
The judge ordinary heard almost all matters 
in the first instance. by the judicature act, 
1873, § 3, the jurisdiction of the court was 
transferred to thesupreme court of judicature. 
Sweet. 


COURT FOR THE CORRECTION 
OF ERRORS. The styleof a court having 
jurisdiction for review, by appeal or writ of 
error. The name was formerly used in New 
York and South Carolina. 


COURT FOR THE RELIEF OF IN- 
SOLVENT DEBTORS. In English law. 
A loeal court which has its sittings in Lon- 
lon only, which receives the petitions of in- 
solvent debtors, and decides upon the ques- 
tion of granting a discharge. 


COURT FOR THE TRIAL OF IM- 
PEACH MENTS. A tribunal empowered 
to try any oflicer of government or other per- 
son brought to its bar by the process of im- 
peachment. In England, the house of lords 
constitutes such a court; in the United States, 


288 


COURT OF ANCIENT DEMESNE 


the senate; and in the several states, usually, 
the upper house of the legislative assembly. 


COURT-HAND. In old English prae- 
tice. The peculiar hand in which the ree- 
ords of courts were written from the earliest 
period down to the reign of George il. Its 
characteristics were great strength, compact 
ness, and undeviating uniformity; and its 
use undoubtedly gave to the ancient record 
its acknowledged superiority over the mod- 
ern, in the important quality of durability. 

The writing of this hand, with its peculiar 
abbreviations and contractions, constituted, 
while it was in use, an art of no little im- 
portance, being an indispensable part of the 
profession of “clerkship,” as it was called. 
Two sizes of it were employed, a large anda 
small hand; the former, called “great court 
hand,” being used for initial words or clauses, 
the placita of records, etc. Burrill. 


COURT-HOUSE. The building occupied 
for the public sessions of a court, with its va- 
rious offices, The term may be used of a placa 
temporarily occupied for the sessions of a 
court, though not the regular court-house. 
55 Mo. 181; 71 IL. 350. 


COURT-LANDS. Domains or lands kept 
in the lord’s hands to serve his family. 


COURT-LEET. Thename ofan English 
court of record held once in the year, and 
not oftener, within a particular hundred, 
lordship, or manor, before the steward of tha 
leet; being the king’s court granted by char. 
ter to Lhe lords of these hundreds or manors, 
Its oflice was Lo view the frankpledyes,—that 
is, the freemen within the liberty; to present 
by jury crimes happening within the juris 
diction; and to punish trivial misdemeanors. 
It has now, however, for the most part, fall- 
en into total desuetude; though in some 
manors a court-leet is still periodically held 
for the transaction of the administrative 
business of the manor. Mozley & Whitley, 


COURT-MARTIAL. A military court, 
convened under authority of government and 
the articles of war, for trying and punishing 
military offenses committed by soldiers or 
suilors in the army or navy. 


COURT OF ADMIRALTY. A court 
having jurisdiction of causes arising under 
the rules of admiraltylaw. See ADMIRALTY. | 


COURT OF ANCIENT DEMESNE. | 
In English law. A court of peculiar consti: 
tution, held by a bailiff appointed by theking, 
in which alone the tenants of the king’s de- | 


 mesne could be impleaded. 2 Burrows, 1046; 
1 Spence, Eq Jur. 100; 2 BI. Comm. 99; I 
Steph. Comm, 224. 


COURT OF APPEAL, HER MAJ- 
ESTY’S. The chief appellate tribunal of 
England. It was established by the judicature 
acts of 1873 and 1875, and is invested with 
the jurisdiction formerly exercised by the 
court of appeal in chaneery, the. exchequer 
chamber, the judicial committee of the privy 


| with veneral appellate jurisdiction from the 
high court of justice. 


COURT OF APPEALS. In American 

law. An appellate tribunal which, in Ken- 

| tucky, Maryland, and New York, is the court 

 wvilastresort. In Delaware and New Jersey, 

itis known as the “court of errors and ap- 

peals;” in Virginia and West Virginia, the 

"Supreme court of appeals.” In Texas the 

court of appeals is inferior to the supreme 
court. 


COURT OF APPEALS IN CASES 

OF CAPTURE. A court erected by act of 

congress under the articles of confederation 

| which preceded the adoption of the constitu- 

| tion, It had appellate jurisdiction in prize 
causes, 


COURT OF ARBITRATION OF 
THE CHAMBER OF COMMERCE. A 
court of arbitrators, created for the conven- 
ience of merchants in the city of New York, 
by act of the legislature of New York. It 
decides disputes between members of the 
chamber of commerce, and between members 
and outside merelants who voluntarily sub- 
mit themselves to the jurisdiction of the 
court, 


COURT OF ARCHDEACON. The 
most inferior of the English ecclesiastical 
eourts, from which an appeal generally lies 
to that of the bishop, 3 LI. Comm, 64, 


COURT OF ARCHES. See ARCHES 
Cour. 


COURTS OF ASSIZE AND NISI 
PRIUS. Courts in England composed of 
two or more commissioners, called “judges of 
assize,” (or of “assize and nist prius,”) who 
are twice in every year sent by the queen's 
special conimission, on circuils all round the 
kingdom, to try, by a jury of the respective 
counties, the truth of such matters of fact as 
are there under dispute in the courts of West- 
minster Ilall. 3 Steph. Comm. 421, 422; 3 
bl. Comm. 57, 

AM, DICT. LAW—19 


council in admiralty and lunacy appeals, and | 


COURT OF APPEAL 289 COURTS OF CINQUE PORTS 


COURT OF ATTACHMENTS. The 
lowest of the three courts held in the forests. 
Tt has fallen into total disuse. 


COURT OF AUDIENCE. £Ecelesias- 
tical courts, in which the primates once exer- 
eised in person a considerable part of their 
jurisdiction. They seem to be now obsolete, 
or at least to be only used on the rare occur- 
rence of the trial of a bishop. Phillim. Eec. 
Law, 1201, 1204, 


COURT OF AUGMENTATION. An 
English court created in the time of Henry 
VIIL, with jurisdiction over the property 
and revenue of certain religious founda- 


tions, which had been made over to the king 
by act of parliament, and over suits relating 
to the same, 


COURT OF BANKRUPTCY. An En- 
glish court of record, having original and 
appellate jurisdiction in matters of bank- 
ruptcy, and invested with both legal and 
equitable powers for that purpose. 


COURT OF CHANCERY. A court 
having the jurisdiction of a chancellor; a 
court administering equity and proceeding 
according to the forms and principles of 
equity. In England, prior to the judicature 

| aets, the style of the court possessing the 
largest equitable powers and jurisdiction was 
the “high court of chancery.” In some of 
the United States, the title “court of chan- 
cery” is applied to a court possessing general 
equity powers, distinct from the courts of 
commun law, 

The terms “equity” and “chancery,” “court of 
equity” and “court of chancery,” are constantly 
used as synonymous iu the United States. It is 
| presumed that this custom arises from the circum- 

stance that the equity jurisdiction which is exer. 

cised by the courts of the various states is assimi- 
lated to that possessed by the English courts of 
ehancery. Indeed, in some of the states it is made 


identical therewith by statute, so far as conform- 
able to our institutions, Bouvier. 


COURT OF CHIVALRY, or COURT 
MILITARY, was a court not of record, held 
before the lord high constable and earl mar- 
shal of England. It had jurisdiction, both 
civil and criminal, in deeis of arms and war, 
armorial bearings, questions of precedence, 
etc., and as acourt of honor. It has long 
been disused. 3 Bl. Comm. 103; 3 Steph. 
Comm. 335, note 2. 


COURTS OF CINQUE PORTS. In 

Englishlaw. Courts of limited local jurisdic- 

| tion formerly held before the mayor and jurats 
| (aldermen) of the Cinque Ports. 


K 


COURT OF CLAIMS 


COURT OF CLAIMS. One of the 
courts of the United States, erected by act of 
congress. I consists of a chief justice and 
four associates, and holds one annual session. 
It is located at Washington. Its jurisdiction 
extends to all claims against the United 
States arising out of any contract with the 
governinent or based om an act of congress 
or regulation of the executive, and al] claims 
referred to it by either. house of congress, as 
well as to claims for exoneration by a dis- 
bursing officer. Its judgments are, in cer- 
tain cases, reviewable by the United States 
Bupreme court. It has no equity powers. 
Its decisions are reported and published. 


COURT OF THE CLERK OF THE 
MARKET. An English court of inferior 
jurisdiction held in every fair or market for 
the punishment of misdemeanors committed 
therein, and the recognizance of weights and 
measures, 


COURT OF COMMISSIONERS OF 
SEWERS. The name of certain English 
courts created by commission under the great 
seal pursuant to the statute of sewers, (23 
Hen. VIII. ¢. 5.) 


COURT OF COMMON PLEAS. The 
English court of common pleas was one of 
the four superior courts at Westminster, and 
existed up to the passing of the judicature 
acts. It was also styled the “Common 
Bench.” it was one of the courts derived 
from the breaking up of the aude regis, and 
had exclusive jurisdiction of all real actions 
and of communia placita, or common pleas, 
i. e., between subject and subject. It was 
presided over by a chief justice with four 
puisne judges. Appeals lay anciently to the 
kmg’s bench, but afterwards to the exchequer 
chamber. See 3 Bl. Comm, 37, et seq. 

In American law. The name some 
times given to a court of original and gen- 
eral jurisdiction for the trial of issues of fact 
and law according to the principles of the 
common law. 


COURT OF COMMON PLEAS FOR 
THE CITY AND COUNTY OF NEW 
YORK. The oldest court in the state of 
New York. Its jurisdiction is unlimited as 
respects amount, but restricted to the city 
and county of New York as respects locality. 
Tt has also appellate jurisdiction of cases tried 
inthe marine court and district courts of 
New York city. Rap. & L. 


COURTS OF CONSCIENCEH. These 
were the same as courts of request, (q. 0.) 


290 


| dicial functions extend, it has jurisdiction of 


COURT OF ERROR 


COURT OF CONVOCATION. Ip 
English ecclesiastical law. A court, or 
assembly, comprising all the high officials 
ofeach province and representatives of the 
minor clergy. itis in the nature of an ec 
clesiastical parliament; and, so far as its ju- 


cases of heresy, schism, and other purely ec- 
clesiastical matters, An appeal lies to the 
queen in council. 


COURT OF THE CORONER. In En- 
glishlaw. A court of record, toingnire, when 
any one dies in prison, or comes to a violent 
or sudden death, by what manner he came te 
his end. 4 Steph. Comm. 323; 4 Bl. Comm. 
274. See CoRONER. 


COURTS OF THE COUNTIES PAL- 
ATINE. In Englishlaw, A species of pri- 
vate court whieh formerly appertained to the 
counties palatine of Lancaster and Durham. 


COURT OF COUNTY COMMISSION- 
ERS. There is in each county of Alabama 
a court of record, styled the “court of county 
commissioners,” composed of the judge of 
probate, as principal judge, and four com- 
missioners, who are elected at the times pre- 
scribed by law, and hold office for four years, 
Code Ala. 1886, § 819. 


COURT OF DELEGATES. A tribu- 
nal composed of delegates appointed by royal 
commission, and formerly the great court of 
appeal in all ecclesiastical causes. ‘The pow- 
ers of the court were, by2 & 3 Wm. 1V.c¢. 
92, transferred to the privy council. A com- 
mission of review was formerly granted, in 
extraordinary cases, to revise a sentence of 
the court of delegates, when that court had 
apparently been led into material error. 
Brown, 


COURT OF THE DUCHY OF LAN- 
CASTER. A court of special jurisdiction, 
held before the chancellor of the duchy or his 
deputy, concerning all matters of equity re- 
ating to lands holden of the king in right of 
the duchy of Lancaster. 8 Bi. Comm. 78, 


COURT OF EQUITY. A court which 
has jurisdiction in equity, which administers 
justice and decides controversies in accord- 
ance with the rules, principles, and prece- 
dents of equity, and which follows the forms 
and procedure of chancery; as distinguished 
from a court having the jurisdiction, rules, 
principles, and practice of the common law. 


COURT OF ERROR. An expression 
applied especially to the court of exchequer 


COURT OF ERRORS, ETC. 


chamber and the house of lords, as taking 
cgnizauce of error brought, Mozley & Whit- 
ley, It is applied in some of the United 
States to the court of last resort in the state; | 
and in its most general sense denotes any 
courd having power to review the decisions 
of lower courts on appeal, error, certiorart, 
or other process. 


COURT OF ERRORS AND AP- 
PHALS. The court of last resort in the | 
stite of New Jersey is so named, Former- 
ly, the same title was given to the highest 
court of appeal in New York. 


COURT OF EXCHEQUER. In En- 
glishlaw. A very ancient court of record, 
set up by William the Conqueror as a part of 
ie aula vegis, and afterwards one of the 
four superior courts at Westminster. It 
wes, however, inferior in rank to Loth the 
King’s bench and the common pleas. It was 
presided over by a chief baron and four | 
puisne barons. It was originally the king’s 
treasury, and was charged with keeping the 
King’s accounts and collecting the royal rev- 
ernes. But pleas between subject and sub- 
ject were anciently heard there, until this 
was forbidden by the Articule. super Chartas, 
(1290,) after which its jurisdiction as a court 
only extended to revenue cases arising out of 
the non-payment or withholding of debts to 
the crown. But the privilege of suing and 
being sued in this court was extended to the 
king’s accountants, and later, by the use ofa | 
convenient fiction to the effect that the plain- 
tiff was the King’s debtor or accountant, the 
court was thrown open to all suitors in per- 
sonil actions. The exchequer had formerly 
both an equity side and a common-law side, 
but its equity jurisdiction was taken away by 
the statute 5 Vict. c. 6, (1842,) and trans- 
ferred to the courtof chancery. The judica- 
ture aci (1873) transferred the business and 
jurisdiction of this court to the “ Exchequer 
Division” of the “High Court of Justice.” | 

Tn Secoteh law. <A court which formerly 
had jurisdiction of matters of revenue, and 
a limited jurisdiction over cases between the 
erown and its vassals where no questions of 
title were involved. 


COURT OF EXCHEQUER CHAM- 
BER. The name of a former English court 
of appeal, intermediate between the superior 
courts of common law and the house of 
lords. When sitting as a court of appeal 
from any one of the three superier courts of 
common law, it was composed of judges of 
tbe other two courts. $3 Bl. Comm, 56, 573 | 


291 


COURT OF JUSTICIARY 


3 Steph. Comm. 353, 356. By the Judicature 
act (1873) the jurisdiction of this court is 
transferred toe the court of appeal. 


COURT OF GENERAL QUARTER 
SESSIONS OF THEH PEACE. In 
American law. A court of criminal juria- 
diction in New Jersey. - 

In English law. A court of criminal 
jurisdiction, in England, held in eich county 
once in every quarter of a year, but in the 
county of Middlesex twice a month. 4 
Steph. Comm, 317-820, 


COURT OF GENERAL SESSIONS. 
The name given in some of the states (as 
New York) to a court of general original 
jurisdiction in criminal cases. 


COURT OF GREAT SHSSIONS IN 
WALES. A court formerly held in Wales; 
abolished by 11 Geo. LV. and 1 Wm. IV. ¢. 
70, and the Welsh judicature incorporated 
with that of England, 3 Steph. Comm. 317, 
note, 


COURT OF HUSTINGS. In English F 
law. The county court of London, held be. 
fore the mayor, recorder, and sheriff, but of 
which the recorder is, in effect, the sole 
judge. No actions can be brought in this G 
court that are merely personal, 3 Steph. 
Comm. 449, note Z. 

In American law. A local court in 
some parts of the state of Virginia’ 6 


D 


E 


| Grat. 696. 


COURT OF INQUIRY. In English 
law. A court sometimes appointed by the 
crown to ascertain whether it be proper to 
resort to extreme measures againgl a person ‘ 
charged before a court-martial. 

In American law. <A court constituted 
by authority of the articles of war, invested 
with the power to examine into the nature of 
any transaction, accusation, or a 
against any officer or soldier, The said court 
shall consist of one or ;nore officers, not ex- 
ceeding three, and a judge advocate, or 
other suitable person, as a recorder, to reduce 
the proceedings and evidence to writing; all 
of whom shall be sworn to the performance 
of their duty. Rey. St. § 1042, arts. 115, 
116. 


COURT OF JUSTICH SEAT, tak 
English law. The principal of the forest 


courts, 


COURT OF JUSTICIARY. A Scotch 
court of general criminal jurisdiction of al} 
offenses committed in any part of Scotland, 


COURT OF KING’S LENCH ag 


both to Lry causes and to review decisions of | 
inferior criminal courts. It is composed of | 
five lords of session with the lord president 
or justice-clerk ag president. It also has 
appellate jurisdiction in civil causes involving 
stall amounts. An appeal lies to the house 
of lords. “ 


COURT OF KING’S BENCH. In 
English law. The supreme court of com- 
mon law in the kingdom, now merged in the 
high court of justice under the judicalure 
act of 1873, § 16. 


COURT OF THE LORD HIGH 
STEWARD, Jn English law. A-court in- 
stituted for the trial, during the recess of par- 
linment, of peers indicted for treason or fel- 
ony, or for niisprision of either. This court 
is not a permanent body, but is created in 
modern times, when occasion requires, and 
for the time being, only; and the lord high 
steward, so constituted, with such of the 
temporal lords as may take the proper oath, 
and act, constitute the court. 


COURT OF THE LORD HIGH 
STEWARD OF THE UNIVERSITIES. 
Tn English law. <A court constituted for the 
trial of scholars or privileged persons con- 
nected with the university at Oxford or Cam- 
bridge who are indicted for treason, felony, 
or mayhem, 


COURT OF MAGISTRATES AND 
FREEHOLDERS. In American law. The 
name of a court formerly established in South 
Carolina for the trial of slaves and free per- 
sons of color for criminal offenses. 


COURT OF MARSHALSEA. A court 
which had jurisdiction of all trespasses com- 
mitted within the verge of the king’s court, 
where one of the parties was of the ruyal 
household; and of all debts and contracts, 
when both parties were of that establishment. 
It was abolished by 12 & 18 Vick c. 101, 
§ 13. Mozley & Whitley. 


COURT OF NISI PRIUS. In Amer- 
ican law. Though this term is frequently 
used as a general desi¢nation of any court ex- 
ercising general, origiiial jurisdiction in civil 
cases, (being used interchangeably with 
“trial-cuurt,”) it belonged as a legal title 
only to a court which formerly existed in the 
city and county of Philadelphia, and which 
was presided over by one of the judges of the 
supreme court of Pennsylvania. This court 
was abolished by the constitution of 1874. 
See Courts of Assizze AND Nis PRIUS. 


2 COURT OF OYER, ETC. * 


' inal jurisdiction in the state of Pennsylvania. 


COURT OF ORDINARY. In som 
the United States (e. g., Georgia) this nama 
is given to the probate or surrogate’s co 
or the court having the usua) jurisdiction in 
respect to the proving of wills and tle admin- 
istration of decedents’ estates. 


COURT OF ORPHANS. In English 
law. The conrt of thelord mayor and alder- 
men of London, which has the care of those 
orphans whose parent died in London and 
was free of the city. 

In Pennsylvania (and perhaps some other 
states) the name “orphans’ court” is applied 
to that species of tribunal which is elsewhere 
known as the “probate court” or “surro- 
gate’s court.” 


COURT OF OYER AND TERMI- 
NER. In Englishlaw. A court for the 
trial of cases of treason and felony. The 
commissioners of assise and wisi prius are 
judges selected by the queen and appointed 
und authorized under the great seal, including 
usually two of the judges at Westminster, 
and sent out twice a year into most of the 
counties of England, for the trial (with ajary 
of the county) of causes then depending at 
Westminster, both civil and criminal. They 
sit by virtue of several commissiuns, each of 
which, in reality, constiintes thema separate 
and distinct court. The commission of oyer 
and lterminer gives them authority for the 
trial of treasons and felonies; that of general 
gaol delivery empowers them to try every 
prisoner then in gaol for whatever offense; 
su that, altogether, they possess full crim- 
inal jurisdiction. 

In American law, This name is gen- 
erally used (sometimes, with udditions) as the 
tifle, or part of the title, of a state court of 
criminal jurisdiclion, or of the criminal 
branch of a court of general jurisdiction, be- 
ing commonly applied to such: courts as may 
try felonies, or the higher grades of crime. 


COURT OF OXYER AND TERMI- 
NER AND GENERAL JAIL DELIV- 
ERY. In Americun law. A courtof erim- 


It is held at the same time with the 
court of quarter sessions, as a general rule, 
and by the same judges. See Brightly's 
Purd. Dig. Pa. pp. 26, 382, 1201. 


COURT OF OYER AND TERMI- 
NER, GENERAL JAIL DELIVERY, 
AND COURT OF QUARTER SES- 
SIONS OF THE PHACH, IN AND FOR 
THE CITY AND COUNTY OF PHILA- 


DELPHIA, 
record of general criminal jurisdiction in and | WALES. 


COURT OF PALACE, ETC. 


In American law. A court of 
for the city and county of Philadelphia, in 
the state of Pennsylvania. 


COURT OF PALACE AT WRHST- 
MINSTER. This court had jurisdiction of 
personal actions arising within twelve miles 
of the palace at Whitehall. Abolished by 12 
& 18 Vict. c. 101, 3 Steph. Comm, 317, note. 


COURT OF PASSAGE. An inferior 
court, possessing a very ancient jurisdiction 


over causes of action arising within the | 


borough of Liverpool. It appears to have 
been also called the “Borough Court of Liv- 
erpool.” It has the same jurisdiction in ad- 
wiraltby matters as the Lancashire county 
court, Rose. Adm, 75. 


COURT OF PECULIARS. A spiritual 
court in England, being a branch of, and an- 
nexed to, the Courtof Arches, It has ajuris- 
diclion over all those parishes dispersed 
through the province of Canterbury, in the 
midst of other dioceses, which are exempt 
from the ordinary’s jurisdiction, and subject 
to the metropolitan only. Al ecclesiastical 
causes arising within these peendiiar or ex- 
empt jurisdictions are originally cognizable 
by this court, from whieh an appeal lies to 
the Court of Arches. 3 Steph, Comin. 431; 
4 Reeve, Eng. Law, 104. 


COURT OF PIEPOUDRE. The tow- 
est (anil most expeditious) of the courts of 
justice known to the older law of England. 
it is supposed to have been so called from 
the dusty feet of the suitors, It was a court 
of record incident to every fair and market, 
was held by the steward, and had jurisdiction 
to alminister justice for all comercial in- 
juries an! minor offenses done in that same 
fair or market, (not a preceding one.) An 
appeal lay to the courts at Westminster. This 
court long ago fell into disuse. 3 Bi. 
Comm. 32, 


COURT OF PLEAS. A court of the 
county palatine of Durham, having a local 
common-law jurisdiction. It was abolished 
oy the judicature act, which: transferred its 
jurisdiction to the high court. Jud. Act 
1373, § 16; 3 Bl. Comin. 79. 


COURT OF POLICIES OF ASSUR- 
ANCE. A court established by statute 43 
Eliz. c. 12, to determine in a summary way 
all causes between merchants, concerning 
policies of insurance. Crabb, Eng. Law, 
503. 


293 


COURT OF RECORD 


COURTS OF PRINCIPALITY OF 
A species of private courts of a 
limited though extensive jurisdiction, which, 
upon the thorough reduction of that princi- 
pality and the settling of its polity in the 
reign of Henry VIII., were erected all over 
the country. These courts, however, have 
been abolished by 1 Wm. IV. c. 70; the 
principality being now divided into two cir- 
cuits, which the judges visit in the same 
manner as they do the circuits in England, 
for the purpose of disposing of those causes 
which are ready for trial. Brown. 


COURT OF PROBATE. In English 
law. The name of a court established in 
1857, under the probate act of that year, (20 
& 21 Vict. c¢. 77,) to be held in London, to 
which court was transferred the testamentary 
jurisdiction of the ecclesiastical courts. 2 
Steph. Comm. 192. By the judicature acts, 
this court is merged in the high court of 
justice. 

In American law. <A court having jn- 
risdiction over the probate of wills, the grant 
of administration, and the supervision of the 
management and settlement of the estates of 
decedents, including the collection of assets, 
the allowance of claims, and the distribution 
of tne estate. In some states the probate 
courts also have jurisdiction of the estates of 
minors, including the appointment of puard- 
ians and the settlement of their accounts, and 
of the estates of lunatics, habitual drunkards, 
and spendthrifts. Andin some states these 
courts possess a limited jurisdiction in civil 
and criminal cases. ‘They are also called 
“orphans’ courts” and “surrogate’s courts.” 


COURT OF QUARTER SESSIONS 
OF THE PEACE. In American law. A 
court of eriminai jurisdiction in the state of 
Pennsylvania, having power to try misde- 
meanors, and exercising certain functions of 
an adwinistrative nature. There is onesuch 
court in each county of the state. Its ses- 
sions are, in general, held at the same tima 
and by the same judges as the court of oyer 
and terminer and general jail delivery. See 
Brightly’s Pard, Dig. pp. 26, 388, § 35, 
p-1198,.§ 1: 


COURT OF QUEEN’S BENCH. 
Kine’s BENOH. 


See 


COURT OF RECORD. A court whera 
the actsand judicial proceedings are enrolled 
on parchment or paper for a perpetual me- 
morial and testimony; and which has power 


K 


COURT OF RECORD 


to fine and imprison for contempt of its au- 
thority. 3 Steph. Comm. 383; 3 Bl. Comm. 
24. 

4 court which has jurisdiction to fine and im- 
prison, or one having jurisdiction of civil causes 
above forty shillings, and proceeding according to 
the course of the common law. 37 Me. 29. 

A judicial organized tribunal having attributes 
and exercising functions independently of the per- 
son of the magistrate designated generally to hold 
it, and proceeding according to the course of the 
common law. Bouvier. 

Courts not of record are those of inferior 
dignity, which have no power to fine or im- 
prison, and in which the proceedings are not 
enrolled or recorded, 3 Steph. Comm, 384. 


COURT OF REGARD. In English 
law. One of the forest courts, in England, 
held every third year, for the lawing or ex- 
peditation of dogs, to prevent them from 


running after deer. It is now obsolete. 8 
Steph. Comm. 440; 3 Bl. Comm. 71, 72. 
COURTS OF REQUEST. Inferior 


courts, in England, having local jurisdiction 
in claims for small debts, established in vari- 
ous parts of the kingdom by special acts of 
parliament. ‘They were abolished in 1846, 
and the modern county courts (g. v.) took 
their place. 3 Steph. Comm. 283. 


COURT OF SESSION. The name of 
the highest court of civil jurisdiction in Scot- 
land. 

It was composed of fifteen judges, now of 
thirteen. It sits in two divisions. ‘he lord 
- president and three ordinary lords form the 
first division; the lord justice clerk and three 
other ordinary lords form the second divis- 
ion. There are five permanent lords ordi- 
nary attached equally to both divisions; the 
last appointed of whom officiates on the bills, 
t. e., petitions preferred to the court during 
the session, and performs the other duties of 
junior lord ordinary. The chambers of the 
parliament house in which the first and sec- 
ond divisions hold their sittings are called 
the “inner house;” those in which the lords 
ordinary sit as single judges to hear motions 
and causes are collectively called the “outer 
house.” The nomination and appointment 
of the judges is in the crown. Wharton. 


COURT OF SESSIONS. Courts of 
eriminal jurisdiction existing in California, 
New York, and one or two other of the 
United States. 


COURT OF STANNARIES. In En- 
giishlaw. Acourt established in Devonshire 
aud Cornwall, for the administration of jus- 


29¢ 


| sheriffs, and other misdemeanors contrary to 


| English law. One of the forest courts, hay 


| shed, occurring in or within the limits of 


| Comm. 276, 277, and notes. 


COURT OF SWEINMOTE 


tice among the miners and tinners, and t 
they may not be drawn away froin their bi 
ness to attend suits in distant courts, 
stannary court is a court of record, wit 
special jurisdiction. 3 B). Comm. 79. 


‘COURT OF STAR CHAMBER, T 
was an English court of very ancient ori 
but new-modeled by St, 3 Hen. V11.e. 1, 
21 Hen. VIL. oc. 20, consisting of div 
lords, spiritual and temporal, being privy 
councillors, together with two judges of the 
courts of common law, without the interyen- 
tion of any jury. The jurisdiction extended 
legally over riots, perjury, misbehavior of 


the laws of the land; yet it was afterwards 
stretched tu the asserting of all proclamations 
and orders of state, to the vindicating of ille 
gal commissions and grants of monopolies; 
holding for honorable that which it pleased, 
and for just that which it profited, and be 
coming both a court of law to determine civil 
rights and a court of revenue to enrich the 
treasury. It was finally abolished by St. 16 
Car. I. ¢. 10, to the general satisfaction of the 
whole nation. Brown. 


COURT OF THE STEWARD AND 
MARSHAL. A high court, formerly held 
in England by the steward and marshal of 
the king’s household, having jurisdiction of 
all actions against the king’s peace within 
the bounds of the household for twelve miles, 
which circuit was called the “verge.” Crabb, 
Eng. Law, 185. It had also jurisdiction of 
actions of debt and covenant, where both the 
parties were of the household. 2 Reeve, Eng. 
Law, 235, 247, 


COURT OF THE STEWARD OF 
THE KING’S HOUSEHOLD. In En- 
glish law. A court which had jurisdiction — 
of all cases of treason, misprisiun of trea- 
son, murder, manslaughter, bloodshed, and 
other malicious strikings whereby blood is 


any of the palaces or houses of the king, or 
any other house where the royal person ig 
abiding. 

It was created by statute 33 Hen. VIII. e. 
12, but long since fell into disuse. 4 BL 


COURT OF SURVEY. Acourt forthe 
hearing of appeals by owners or masters of 
ships, from orders for the detention of unsafe 
ships, made by the English board of trade, 
under the merchant shipping act, 1876, § 6. 


COURT OF SWEINMOTE. In old 


/ 


Ing a somewhat similar jurisdiction to that 
of the court of attachments, (q. 2.) 


COURTS OF THE UNITED STATES 
comprise the following: ‘The senate of the 
United States, sitting as a court of impeach- 
ment; the supreme court; the circuit courts; 
the circuit courts of appeals; the district 
courts; the supreme court of the District of 
Columbia; the territorial courts; and the 
court of claims, See the several titles, 


COURTS OF THE UNIVERSITIES 
of Oxford and Cambridge have jurisdiction 
in all personal actions to which any member 
orservant of the respective university isa 
party, provided that the cause of aclion arose 
within the liberties of the university, and 
that the member or servant was resident in 
the university when it arose, and when the 
action was brought. 3 Steph. Comm. 299; 
St. 25 & 26 Vict. c. 26, § 12; St. 19 & 20 Vict. 
¢.17 ach university court also has a crim- 
inal jurisdiction in all offenses committed by 
its members. 4 Steph. Comm. 325. 


COURT OF WARDS AND LIVER- 
IES. <A court of record, established in 
Hngland in the reign of Henry VIII. For 
the survey and management of the valuable 
fruits of tenure, a court of record was ere- 
ated by St. 32 Hen. VIII. c. 46, called the 
“Court of the King’s Wards.” To this was 
annexed, by St. 33 Hen, VIII. c. 22, the 
“Court of Liveries;” so that it then became 
the “Court of Wards and Liveries.” 4 
Reeve, Eng. Law, 258. This court was not 
only forthe management of “wards,” prop- 
erly so called, but also of idiots and natural 
fools in the king’s custody, and for licenses 
to be granted to the king’s widows to marry, 
and fines to be made for marrying without 
his license. Id. 259. It was abolished by 
statute 12 Car. Ll. c. 24. Crabb, Eng. Law, 
463. 


COURTS OF WESTMINSTER 
HALL. The superior courts, both of law 
and equity, were for centuries fixed at West- 
minster, an ancient palace of the monarchs 
of Evgland. Formerly, all the superior 
courts were held before the king’s capital 
justiciary of England, in the aula regis, or 
such of his palaces wherein his royal person 
resided, and removed with his househeld 
from one end of the kingdom to another. 
This was found to occasion great ineonven- 
ience to the suilors, to remedy which if was 
made an article of the great charter of liber- 
ties, both of King Jolin and King Henry IIL, 
that “common pleas should no longer follow 


COURTS OF THE UNITED STATES 295 


COUVERTURE 


the king’s court, but be held in some certain 
place,” in consequence of which they have 
ever since been held (a few necessary remov- 
als in timés of the plague excepted) in the 
palace of Westminster only. The courts of 
equity also sit at Westminster, nominally, 
during term-time, although, actually, only 
during the first day of term, for they gener- 
ally sit in courts provided for the purpose in, 
or in the neighborhood of, Lincoln’s Inn. 
Brown. 


COURT PREROGATIVE. 
ROGATIVE COURT. 


COURT ROLLS. The rolls of a manor, 
containing all acts relating thereto. While 
belonging to the lord of the manor, they are 
not in the nature of public books for the 
benelit of the tenant. 


COURTESY. Sea 


COUSIN. Kindred in the fourth degree, 
being the issue (male or female) of the 
brother or sister of one’s father or mother. 

Those who descend from the brother or 
sister of the father of the person spoken of 
are called “paternal cousins,” “maternal 
cousins” are those who are descended from 
the brothers or sisters of the mother. 

In English writs, commissions, and other formal 
instruments issued by the crown, the word siguifles 
any peer of the degree of anearl, The appellation 
is as ancient as the reign of Henry 1V., who, be- 
ing related or allied to every earl then in the king- 
dom, acknowledged that connection in all his let- 
ters and publie acts; from which the usa has de- 
scended to his successors, though the reason has 
long ago failed, Mozley & Whitley. 


COUSINAGE. See CosINAGE. 


COUSTOM. Custom; duty; toll; tribute. 
1 Bi. Comm. 314. 


COUSTOUMIER. (Otherwise spelled 
“Coustumier” or “Coutumier.”) In old 
French law. A collection of customs, un- 
written laws, and forms of procedure. Two 
such volumes are of especial importance in 
juridical history, viz., the Grand Coustumier 
de Normandie, and the Coutumier de France 
or Grand Coutumier. 


COUTHUTLAUGH. A person who 
willingly and knowingly received an outlaw, 
and cherished or concealed him; for which 
offense he underwent the same punishment 
as the outlaw himself. ract. 1286; Spel- 
man. 


COUVERTURE, in French law, is the 
deposit (“margin”) made by the client in the 
hands of the broker, either of asum of money 


Ses PRE- 


JURTESY. 


K 


SOVENABLE 


or of securities, in order to guaranty the 
broker for the payment of the securities 
which he purchases for the client. Arg. Ir. 
Mere. Law, 555. 


COVENABLE. A French word signify- 
ing convenient or suitable; as covenably en- 
dowed. It is anciently written “convena- 
ble.” Termes de la Ley. 


COVENANT. In practice. The tname 
of a common-law form of action ex contractu, 


which lies for the recovery of damages for | 


breach of a covenant, or contract under scal. 


In the law of contracts. An agree- 
ment, convention, or promise of two or 
more parties, by deed in writing, signed, 
sealed, and delivered, by which either 
of the parties pledges himself to the other 
that something is either done or shall be 
done, or stipulates for the truth of certain 
facts. 

An agreement between two or more par- 
Sies, reduced to writing and executed by a 
sealing and delivery thereof, whereby some 
of the parties named therein engage, or one 
of them engages, with the other, or oilers, 
or some of them, therein also named, that 
some act hath or hath not already been done, 
or for the performance or non-performance 
ot some specified duty, 4 Whart. 71. 


A promise by deed. 2 Steph. Comm. 108, A 
species of express contract, contained in a dead, to 
do a direct act, or toomit one. 3 3B). Comm. 155, 

Covenant is a contract, and is a writing obliga- 
tory, or parol promise, according as it is sealed or 
not. 8 Ala. 320. 

Covenants may be classified according to 
several distinct principles of division. Ac- 
cording as one or other of these is adopted, 
they are: 


Express or implied; the former being 
those which are created by the express words 
of the parties to the deed declaratury of their 
intention, (Plitt, Cov. 25;) while implied 
zovenants ara those which are inferred by 
the law from certain words in a deed which 
imply (though they do not express) them. 
“xpress covenants are also called covenants 
“in deed,” as distinguished from covenants 
“in law.” 


Dapendent, concurrent, and inde- 
pendent. 


Covenants are either dependent, concurrent, or 
mutual and independent. he first depends on the 
prior performance of some act or condition, and, 
until the coudition is performed, the other party 
is not liable to an action on his covenant. In the 
secoud, mutual acts are to be performed at the 
Aame time; and if oue party is ready, and offers to 


296 


COVENANT 


perform his part, and the other negtecte or ref: 
to perform his, he whois ready and offers has 
filled his engagement, and may maintain an 
tor the default of the other, though it is not cer. 
tain that cither is obliged to do the first act. The 
third sort is where either party may recover dam- 
ages from the other for the injuries he may hava 
received by a breach of the covenants in his fayory 
and it is no excuse for the defendant to allega a 
breach of the covenants on the part of the plaintiif. 
8 Ala. 3380. 

Principal and auxiliary ; the former ba- 
ing those which relate directly to the prin- 
cipal matter of the contract entered inte 
between the parties; while auxiliary coye 
nants are those which do not relate directly 
to the principal matter of contract between 
the parties, but to something connected with 
it. 


Inherent or collateral; the former being 
such as affect the particular property im 
mediately, while the latter affect some prop- 
erty evllateral thereto. 


Joint or several. The former bind both 
or all the covenantors together; the latter bind 
each of them separately. A covenant may 
be both joint and several at the saime time, 
as reyvards the covenantors; but, as revards 
the covenantees, they cannot be joint and 
several for one and the same cause, (5 Coke, 
19a,) but must be either joint or several only. 
Covenants are usually joint or several accord- 
ing as the interests of the coyenantees are 
such; but the words of the covenant, where 
they are unambiguous, will decide, although, 
where they are ambiguons, the nature of the 
interests as being joint or several is left to 
decide. Brown. 


General or specific. The former relate 
to land generally and place the covenantee in 
the position of a specialty creditor only; the 
latter relate to particular lands and give the 
covenantee a lien thereon, Brown. 


Executed or executory; the former be 
ing such as relite to an act already per- 
formed; while the latter are those wliose per- 
formance is to be future. Shep. Touch. 161. 


Affirmative or nezative; the former be- 
ing those in which the party binds himself 
to the existence of a present stute of facts as 
represerted or to the future performance of 
some act; while the latter are those in which 
the covenautor obliges himself not to do or 
perform some act. 


Declaratory or obligatory; the former 
being those which serve to limit or direct 
uses; while the latter are those which are 
binding on the party himself. 1 Sid. 27; | 
Keb. 337, 


cOVENANT 


Real or perscrnal; the former be.ng such 
as bind the heirs of the eoyenantor, and pass- 
‘ng to assignees, or to the purchaser; while 
n personal covenant affects only the cove- 
nantor and the assets in the hands of his 
representatives after his death. 4 Kent, 
Comm. 470, 471. Pa 

Transitive or intransitive; the former 
being those personal covenants the duty of 
performing which passes over to the repre- 
sentatives of the covenantor: while the latter 
are those the daty of performing which is 
limited to the covenantee himself, and does 


act pass over to his representative. Bac. 
Abr. Cov. 
Disjunctive covenants. Those which 


ure for the performance of one or more of 
several things at the election of the cove- 
nanter or covenantee, as the case may be. 
Platt, Cov. 21. 


COVENANT AGAINST INCUM- 
BRHANCES. A covenant that there are no 
incumbrances upon the land cunveyed. 


COVENANT COLLATERAL. A cov- 
enant which is conversant about some collat- 
teral thing that doth nothing at all, or not 
so immediately concern the thing granted; 
as to pay i stm of money in gross, etc. 
Shep. Touch. 161. 


COVENANT FOR FURTHER AS- 
SURANCE. An undertaking, in the form 
of acovenant, on the part of the vendor of real 
estate to do such further acts for the purpose 
of perfecting the purchaser's title as the lat- 
ter may reasonably require. This covenant 
is deemed of great importance, since il re- 
lates both to the title of the vendorand to 
the instrument of conveyance to the vendee, 
and operates as well to secure the perform- 
ance of all acts necessary for supplying any 
defect in the former as to remove all objec- 
tions to the sufficiency and security of the 
latter. Dlatt, Cov.; Rawle, Cov. 8§ 98, 99, 


COVENANT FOR QUIET ENJOY- 
MENT. <An assurance against the conse- 
quences of a defective title, and of any dis- 
turbances thereupon. © Platt, Cov. 312; 
Rawle, Cov. 125. 


COVENANT IN DEED. A covenant 
expressed in words, or inserted in a deed in 
specific terms. 


COVENANT IN LAW. A covenant 
implied by law from certain words in a deed 
which do not express it. 1 Archb. N. P. 
350. 


297 


COVENANT, ETC. 


COVENANT INHERENT, A cove- 
nant which is conversant about the land, and 
knit to the estate in the land; as that the 
thing demised shall be quietly enjoyed, shall 
be kept in repxration, shall not be aliened, 
ete. Shep. Touch, 161. 


COVENANT NOT TO SUE. A coy- 
enant by one who had a right of action at 
the time of making it against another person, 
by which he agrees nut to sue to enforcesuch 
right of action. 


COVENANT OF NON-CLAIM. A 
covenant sometimes employed, particularly 
in the New England states, and in deeds of 
extinguishment of ground rents in Pennsyl- 
vania, that neither the vendor, nor his heirs, 
nor any other person, etc., shail claim any 
title in the premises conveyed. Rawle, Cov. 
§ 22. 


COVENANT OF RIGHT TO CON- 
VEY. An assurance by the covenantor that 
the grantor las sutlicient capacity and title to 
convey the estate which he by bis deed un- 
dertakes to convey. 


COVENANT OF SEISIN. <Anassur- 
ance to the purchaser that the grantor has 
the very éstate in quantity and quality which 
he purports toconvey. 11 East, 641; Rawle, 
Cov. $58. It is said that the covenant of 
seisin is not now in use in England, being 
embraced in that of a right to convey; but it 
is use| in several of the United States. 2 
Washb. Real Prop. #648. 


COVENANT OF WARRANTY. An 
assurance by the grantor of an estate that the 
grantee shall enjoy the same without inter- 
ruption by virtue of paramount title. 


COVENANT REAL. A covenant in a 
deed binding the heirs of the covenantor, and 
passing to assignees, or to the purchaser. 

Ibis thus distinguished from a personal 
covenant, which affects only the covenantor, 
and the assets in the hands of his represent. 
atives after his death. 4 Kent, Comm. 470. 

A covenant reai has for its object something an- 
nexed to, or inherent in, orconnected with, land or 
other real property, and runs with the land, so that 
the grantee of the land is invested with it, and may 
sue upon it for any breach happening in his time. 
6 Conn. 249. 

In the old books, a covenant real is also de- 
fined to be a covenant by whicha man binds 
himself to pass a thing real, as lands or ten- 
ements. Termesde la Ley; 3 1. Comm. 156. 


COVENANT RUNNING WITH 
LAWD. <A covenant which goes with the 


COVENANT TO CONVEY 


land, as being annexed to the estate, and 
which cannot be separated from the land, and 
transferred without it. 4 Kent, Comm. 472, 
note. <A covenant is said to run with the 
land, when not only the original parties or 
their representatives, but each successive 
owner of the land, will be entitled to its ben- 
efit, or be liable (as the case may be) to its 
obligation. 1 Steph. Comm. 455. 
other words, it is so called when either the 
liability to perform it or the right to take ad- 
vantage of it passes to the assignee of the 
land, 


COVENANT TO CONVEY. A cove- 
nant by which the covenantor agrees to con- 
vey to the covenantee a certain estate, under 
certain circumstances. 


COVENANT TO STAND SHISED. 
A conveyance adapted to the case where a 
person seised of land in possession, revergion, 
or vested remainder, proposes to convey it to 
his wife, child, or kinsman. In its terms it 
consists of a covenant by him, in consider- 
ation of his natural love and affection, to 
stand seised of the land to the use of the in- 
tended transferee. Before the statute of 
uses this would merely have raised a use in 
favor of the covenanteo; but by that act this 
use is converted into the legal estate, and the 
covenant therefore operates as a conveyance 
of theland to the covenantee. It is now al- 
most obsolete. 1 Steph. Comm. 532; Will- 
jams, Seis. 145. 


COVENANTEE. The party to whoma 
covenant is made. Shep. Touch. 160. 


COVENANTOR. The party who makes 
acovenant. Shep. Touch. 160, 


COVENANTS FOR TITLE. Cove- 
aants usually inserted in a conveyance of land, 
on the part of the grantor, and binding him 
for the completeness, security, and continn- 
ance of the title transferred to the grantee. 
They comprise “covenants for seisin, for 
right to convey, against incumbrances, for 
quiet enjoyment, sometimes for further as- 
surance, and almost always of warranty.” 
Rawle, Coy. § 21. 


COVENANTS IN GROSS. Suchasdo 
not run with the land. 


COVENANTS PERFORMED. In 
Pennsylvania practice. ‘This is the name of 
a plea to the action of covenant whereby the 
defendant, upon informal notice to the plain- 
tiff, may give anylthing in evidence which he 
might have pleaded. 4 Dall. 439, 


298 


we a BI. Comm, 207. 


| of a married woman. 


drawing up goods and wares of burden from 


CRASTINO 


COVENT. A contraction, in the old 
books, of the word “convent.” 


COVENTRY ACT. The name givent 
the statute 22 & 23 Car. II. ¢. 1, which pro 
vided for the punishment of assaults with 
intent to maim ordisigure aperson. It was 
so named from its being occasioned by an as- 
sault on Sir John Coventry in the street. 4 


0 


COVERT. Covered, protected, sheltered, 
A pound covert is one that is close or cov 
ered over, as distinguished from ound 
overt, Whichis open overhead. Co. Litt. 476; 
3 Bl. Comm. 12. <A feme covert is so called, 
as being under the wing, protection, or 
cover of her husband. 1 Bl. Comm. 442, 


COVERT BARON, or COVERT DE 
BARON. Under the protection of a lus 
band; married. 1 Bl. Comm. 442. La feme 
que est covert de baron, the woman which ig 
covert of a husband. Litt. § 670. 


COVERTURE, The condition or state 
Sometimes used ellip. 
tically to describe the legal disability arising 
from a state of coverture. 


COVIN. A secret conspiracy or agree 
ment between two or more persons to injure 
or defraud another. 


COVINOUS. Deceitful, fraudulent. 


COWARDICH. Pusillanimity; fear; 
misbehavior through fear in relation to some 
duty to be performed before an enemy. 
O’Brien, Ct. M. 142. 


CRAFT. A general term, now common. 
ly applied to all kinds of sailing vessels, 
though formerly restricted to the smaller yes- 
sels. Worcester; 21 Grat. 693. 

A guild. 


CRANAGE. A liberty to usea crane for 


ships and vessels, at any creek of the sea, or 
wharf, unto the land, and to make a profit of 
doing so. It also signifies the money paid 
and taken for the service. Tomlins. 


CRASSA NEGLIGEHNTIA. Gross 
neglect; absence of ordinary eare and dill- 
gence. 82.N. Y. 72. 


CRASSUS. Large; gross; excessive; ex- 
treme. Crassa ignorantia, gross ignorance, 
Fleta, lib. 5, c. 22, § 18. 


CRASTINO. The morrow, the day after. 
The return-day of writs; because the first day 
of the term was always some saint’s day, and 


CRATES 


writs wero returnable on the day after. 2 
Reeve, Eng. Law, 56. 


CRATERS. 
1 Vent. 304. 


CRAVE. To ask or demand; as to crave 
byer. See OYER. 


CRAVEN. Inold Englishlaw. A word 
of dliserace and obloquy, pronounced on either 
champion, in the ancient trial by battle, prov- 
ing recreant, 7. e., yielding. Glanville calls 
it “infestum et invereeundum verbum.” His 
condemnation was amittere liberam legem, 
t. e., to become infamous, and not tu be ac- 
counted liber et iegalis homo, being supposed 
by the event to have been proved forsworn, 
and not fit to be put upon a jury or admitted 
asa witness. Wharton. 


An iron gate before a prison. 


CREAMER. A foreign merchant, bat 
generally taken for one who has a stall ina 
fair or market. Blount. 


CREAMUS. We create. One of the 
words by which a corporation in England 


was formerly created by the king. 1 BL. 
Comm, 473. 
CREANCE. In French law. A claim; 


a debt; also belief, credit, faith. 


CREANCER. One who trusts or gives 
eredit; acreditor. Dritt. ce. 23, 73. 


CREANSGR. Acreditor. Cowell. 


CREATE. To create a charter or a cor- 
poration is to make one which never existed 
before, while to venew one is to give vitality 
to one which has been forfeited or has ex- 
pired; and to extend one is to give an exist- 
ing charter more time than originally limited. 
21 Pa. St. 188. 


CREDENTIALS. In international law. 
The instruments which authorize and estab- 
lish a public minister in his character with 
the state or prince to whom they are addressed. 
If the state or prince receive the minister, 
he can be received only in the quality attrib- 
uted to him in his credentials.. They are, as 
it were, his letter of attorney, his mandate 
patent, mandatum manifestum. Vatiel, 
liv. 4, ¢. 6, § 76. 


CREDIBILITY. Worthiness of belief; 
that quality in a witness which renders his 
evidence worthy of belief. After the com- 


petence of a witness is allowed, the consid- | 


eration of his credibility arises, and not be- 
fore. 1 Burrows, 414, 417; 3 Bl. Comm. 
369, 


299 


CREDITOR 


As to the distinction between competency 
and credibility, see COMPETENCY. 


CREDIBLE. Worthy of belief; entitled 
to credit. See COMPETENOY. 


CREDIBLE WITNESS. One who, be- 
ing competent to give evidence, is worthy of 
belief, 5 Mass. 229; 17 Pick. 154; 2 Curt. Ecc. 
836. 

CREDIT. 1. Theability of a business man 
to borrow money, or obtain goods on time, in 
consequence of the favorable opinion held by 
the community, or by the particular lender, 
as to his solvency and reliability. 

2. Time allowed to the buyer of goods by 
the seller, in which to make payment for 
them, 

3. The correlative of a debt; that is, adebt 
considered from the creditor’s stand-point, or 
that which is incoming or due to one, 

4. That which is due te a merchant, as dis- 
tinguished from debit, that which is due by 
him. 

5, That influence connected with certain 
social positions. 20 Toullier, n. 19. 

The credit of an individual is the trust reposed 
in him by these who deal with him that he is of 
ability to meet hia engagements; and he is trusted 
because through the tribunals of the country he 
may be made to pay. The credit of a government 
is founded on a belief of its ability to comply with 
its engagements, and a confidence in its honor, that 
it will do that voluntarily which it cannot be com- 
pelled to do. 3 Ala. 258. 

Credit is the capacity of being trusted. 3N. Y. 
844, 356. 

CREDIT, BILLS OF. See Binris or 
CREDIT. 


CREDIT FONCIER. Fr. A company 
or corporation formed for the purpose of car- 
trying out improvements, by means of loans 
and advances on real estate security. 


CREDIT MOBILIER. Fr. A com- 
pany or association formed for carrying on a 
banking business, or for the construction of 
public works, building of railroads, opera- 
tion of mines, or other such enterprises, by 
meins of loans or advances on the security 
of personal property. 


CREDITOR. A person to whom a debt 
is owing by another person, called the “debt- 
or.” The creditor is called a “simple contract 
creditor,” a “specialty creditor,” a “bond 
creditor,” or a “judgment creditor,” accord- 
ing to the nature of the obligation giving 
rise to the debt; and, if he has issued execu- 
tion to enforce a judgment, he is called an 
“execution creditor.” He may also be a sole 


| or a joint creditor. Sweet. 


Mi 


CREDITOR, JUDGMENT 


CREDITOR, JUDGMENT. One who 
has obtained a judgment against his debtor, 
under which he can enforce execution. 


CREDITORS’ BILL. In English prac- 
tice. <A billin equity, filed by one or more 
creditors, for an account of Lhe assets of a de- 
cedent, and a legal settlement and distribu- 
tion of his estate among themselves and such 
other creditors as may come in under the de- 
cree. 

In American practice. A proceeding ta 
enforce the security of a judgment creditor 
against the property or interests of his debt- 
or. This action proceeds upon the theory 
that the judgment is in the nature of a fien, 
such as may be enforced in equity. 

A creditors’ bill, strictly, is a bill by whieh 
acreditor seeks to satisfy lis debt out of some 
equitable estate of the defendant, which is 
not liable to levy and sale under an execution 
at law. But there is another sort of a cred- 
itors’ bill, very nearly allied to the former, 
by means of which a party seeks to removea 
fraudulent conveyance out of the way of his 
execution. Buta naked bill to set aside a 
fraudulent deed, which seeks no discovery of 
any property, chose in action, or other thing 
alleged to belong tothe defendant, and which 
ought to be subjected to the payinent of the 
judgment, is not a creditors’ bill. 52 TL. 98. 


Creditorum appellatione non hi tan- 
tum accipiuntur qui pecuniam credider- 
unt, sed omnes quibus ex qualibet causa 
debetur. Under the head of “creditors” are 
included, not alone those who have lent mon- 
ey, but all fo whom from any cause a debt is 
owing. Dig. 50, 16, 11. 


CREDITRIX. A female creditor. 


CREEK. In maritime law. Such little 
inlets of the sea, whether within the precinct 
or extent of a port or without, as ure narrow 
passages, and have shore on either side of 
them, Call. Sew. 56. 

A small stream less than a river. 
184. 

The term imports a recess, cove, bay, or 
inlet in the shore of a river, and not a sepa- 
tate or independent stream; though it is 
sometimes used in the latter meaning. 338 
N. ¥, 108. 


12 Pick. 


CREMENTUM COMITATUS. The in- 
crease of un county. The sheriffs of counties 
anciently answered in their accounts for the 
improvement of the king’s rents, above the 
viscontiel rents, under this title. 


300 


CRIEZ LA PEEZ 


P 


CREPARE OCULUM. In Saxon law. 
To put out an eye; which had a pecuniary 
punishmeut of fifty shillings annexed to it, 


CREPUSCULUM. Twilight. In the 
law of burglary, this term means the presence 
of sufficient Tight to discern the face of a 
man; such light as exists immediately before 
the rising of the sun or directly after its set- 
ting. 


Crescente maliti# crescere debet et 
poona. 2 Inst. 479. Vice increasing, pun- 
ishment ouglit also to increase. 


CREST. A term used in heraldry; it sig- 
nifies the devices set over a coat of arma, 


CRETINUS. Inolid reeords. <A sudden 
stream or torrent; a rising or inundation, 


CRETIO. Lat. In the civil law. A 
certain number of days allowed an heir to de- 
liberate whether he would take the inherit- 
ance or not. Calvin. 


CREW. The aggregate of seamen who 
man a ship or vessel, including the master 
and officers; or it may mean the ship’s com- 
pany, exclusive of the master, or exclusive 


of the master and all other oflicers. Seed 
Sum. 209, ef seq. 
CREW LIST. In maritimeiaw. <A list 


of the crew of a vessel; one of a ship’s pa- 
pers. This instrument is required by act of 
congress, and sometimes by treaties. Rey. 
St. U.S. §§ 4874, 4875. It is necessary for 
the protection of the crews of every vessel, 
in the course of the voyage, during a war 
abroad. Jac. Sea Laws, 66, 69, note, 


CRIER. An Ollicer of a court, who makes 
proclamations. His principal duties are to 
announce the opening of the court and its 
adjournment and the fact that certain special 
mutters are alout to be transacted, to an- 
nounce the admission of persons to the bar, 
to call the names of jurors, witnesses, and 
parties, to announce that a witness has been 
sworn, to prociuim silence when so directed, 
and generally to make such proclamations of 
a public nature as the judges order. 


CRIEZ LA PHEYZ. MRehearse the con- 
cord, or peace. A phrase used in the an- 
cient proceedings for levying fines. It waa 
the form of words by which the justice be- 
fore whom the parties appeared directed the 
serjeant or countor in attendance to recite or 
read. aloud the concord or agreement between 
the parties, as to the lands intended to be con- 
veyed. 2 Reeve, Eng. Law, 224, 225, 


CRIM. CON. 3 


CRIM. CON. An abbreviation for “erim- 
{nal conversation,” of very frequent use, de- 
noting adultery. 


CRIME. A crime is an act committed or 
omitted, in violation of a public law, either 
forbidding or commaniling it; a breach or 
violation of some pablie right or duty due to 
a whole community, considered as a com- 
munity in its social aggregate capacity, as 
distinguished from a civilinjury. “Crime” 
and “misdemeanor,” properly speaking, are 


“crime” is made to denote such offenses as 
are of a deeper and more atrocious dye. 4 
Bl, Comin. 5. 

Crimes are tho3e wrongs which the gov- 
ernment notices as injurious to the public, 
aud punishes in what is called a “criminal 
proceeding,” in itsown name. 1 Bish. Crim, 
Law, § 43. 

A crime may be defined to be any act done 
in violation of those duties which an indi- 
vidual owes to the community, and for the 
breach of which the law has provided that 
the offender shall make satisfaction to the 
publie, Bell. 

A crime or public offense isan act commit- 
ted or omitted in violation of a law forbid- 
dling of commanding it, and to which is an- 
nexed, upon conviction, either of the foliow- 
ing punishments: (1) Death; (2) impris- 
oument; (3) fine; (4) removal from office; 
or (5) disqualification to hold and enjoy any 


ofice of honor, trust, or prolit in this state. | 


Pen. Code Cal. § 15. 

A crine or misdemeanor shall consist in a 
violation of a public law, in the commission 
of which there shall be a union or joint oper- 
ation of act and intention, or criminal neg- 
ligence. Code Ga. 1882, § 4292. 

According to Blackstone, the werd “crime” 
denoles such offenses as are of a deeper and 
more atrocious dye, while smaller faults and 
omissions of less consequence are called “ mis- 
demeanors.” But tho better use appears to 
be to make crimes term of broid and gen- 


eral import, including both felonies and mis- | 
demeanors, and henee covering all infrac- | 


tions of the criminal law. In this sense it 
is not & technical phrase, strictly speaking, 
{as “felony” and “misdemeanor” are,) but 
aconvenient general term. In this sense, 
also, “offense” or “publie offense” should be 
used as synonymous with it. 


The d.stinction between a crime and a tort or 
civil injury is that the former is a breach and vio- 
lation of the public right and of duties due to the 
whole community considered as such, and in its 
social and aggregate capacity; whereas Lue latter 


synonymous terms; though in common usage 


O1 


CRIMEN INNOMINATUM 


is an infringement or privation of the civil righta 
of individuals merely. Brown. 

A crime, as opposed to a civil injury, is the vio 
lation of a right, considered in reference to the 
eyil tendency of such violation, as regards the 
community at large. 4 Steph. Comm. 4. 


CRIME AGAINST NATURE. The 
offense of buggery or sodomy. 


CRIMEN. Lat. Crime. 
sation or charge of crime. 


CRIMEN FALSI. In the civil law. 
The crimeof falsifying; which might be com- 
mitted either by writing, as by the forgery 
of a will or other instrument; by words, as 
by bearing false witness, or perjury; and by 
acts, as by counterleiting or alulterating the 
public money, dealing with false weights and 
measures, counterfeiting seals, and other 
fraudulent and deceitful practices. Dig. 48, 
10; Hallifax, Civil Law, b. 3, ¢. 12, nn. 
56-59. 

In Scoteh law. It has been defined: 
“A fraudulent imitation or suppression of 
truth, to the prejudice of another.” Ersk. 
Inst, 4, 4, 66. 

At common law. Any crime which may 
injuriously affect the administration of jus- 
tice, by the introduction of falsehood and 
fraud. 2 Greenl. Ev. § 373. 

In modern law. This phrase is not used 
as a designation of any specific crime, but as 
a general designation of a class of offenses, 
including all such as involve deceit or falsi- 
fication; e. g., forgery, counterfeiting, using 
false weights or measures, perjury, etc. 

Includes forgery, perjury, subornation of 
perjury, and offenses affecting the public ad- 
ministration of justice. 29 Ohio St. 358. 


Crimen falsi dicifur, cum quis illicitus, 
cui non fuerit ad hese data auctoritas, de 
sigillo regis, rapto vel invento, brevia, 
cartasve consignaverit. Fleta, lib. 1, ¢. 23. 
The crime of forgery is when any one illicitly, 
to whom power has not been given for such 
purposes, has signed writs or charters with 
the king's seal, either stolen or found. 


CRIMEN FURTI. Theoffense of theft. 


CRIMEN INCHENDII. In old criminal 
law. The crime of burning, which included 
not only the modern crime of arson, (or burn- 
ing of a house,) butalso the burning of aman, 
beast, or other chattel. Britt. ec. 9; Crabb, 
Eng. Law, 308. 


Also an aceu- 


CRIMEN INNOMINATUM. The 
nameless crime. A term for buggery o1 
sodomy. 


M 


CRIMEN L&SA MAJESTATIS 


CRIMEN LASA MAJESTATIS. In | 


criminal law. The crime of lese-majesty, or 
injuring majesty or royalty; high treason, 
The term was used by the older English law- 
writers to denote any crime affecting the 
King’s person or dignity. 

It is borrowed from the civil law, in which 
it signified the undertaking of any enterprise 
against the emperor or the republic. Inst. 4, 
18, 3. 


Crimen les majestatis omnia alia 
crimina execedit quoad pwenam. 3 Inst. 
210. The crime of treason exceeds all other 
crimes in its punishment. 


Crimen omnia ex se nata vitiat. Crime 
vitiates everything which aprings from it. 
5 Hill, 523, 531. 


CRIMEN RAPTUS. 
rape. 


CRIMEN ROBERIZA. The offense of 
robbery. 


The offense of 


Crimen trahit personam. The crime 
carries the person, (2. ¢., the commission of a 
crime gives the courts of the place where it is 


committed jurisdiction over the personof the | “ 
| lish their punishments. 


offender.) 3 Denio, 190, 210. 


Crimina morte extinguuntur. 
are extinguished by death. 


CRIMINAL. That which pertains to or 
is connected with the law of crimes, or the 
administration of penal justice, or which re- 
lates to or has the character of crime. Also 
a person who has committed a crime; one 
who is guilty of a felony or misdemexnor. 


CRIMINAL ACT. <A term which is 
equivalent to crime; or is sometimes used 
with a slight softening or glossing of the 
meaning, or as importing a possible question 
of the legal guilt of the deed. 

CRIMINAL ACTION. The proceeding 
by which a party charged with a public of- 
fense is accused and bronght fo trial and pun- 


Crimes 


ishment is known as 3 “criminal action.” | 


Pen. Code Cal. § 688. 

A criminal action is (1) an action prose- 
cuted by the state as a party, against a per- 
son echurged with a public offense, for the 
punishment thereof; (2) an action prosecuted 
by the stale, af the instance of an individual, 
to prevent an apprehended erie, against his 
person or property. Code N.C, 1883, § 129. 


CRIMINAL CASE. An action, suit, or 
cause instituted to punish an infraction of 
the criminal laws. 


302 


| 


| 
| 


| injury to the husband entitling him to dam- 


CRIMINAL PROCEDURE 


CRIMINAL CONTEMPT. A con 
tempt of court which consists in openly in- 
sulting or resisting the powers of the court 
or the persons of the judges who preside 
there. Otherwise called “direct” contempt. 
4 Bl. Comm. 283. 


CRIMINAL CONVERSATION. 
Adultery, considered in its aspect of a civil 


ages; the tort of debauching or seducing of 
awife. Often abbreviated to crim. con. 


CRIMINAL INFORMATION. A 
criminal suit brought, without interposition 
of a grand jury, by the proper officer of the 
king or state. Cole, Crim. Inf.; 4 Bl. Comm, 
398. 


CRIMINAL INTENT. The intent to 
commit a crime; malice, as evidenced bya 
criminal act. 


CRIMINAL LAW. That branch or di- 
vision of law which treats of crimes and their 
punishments. 

In the plural—“criminal laws”—the term 
may denote the laws which define and pro- 
hibit the various species of crimes and estab- 


CRIMINAL LAW AMENDMENT 
ACT. Tiis act was passed in 1871, (34 & 
85 Vict. c. 32,) to prevent and punish any 
violence, threats, or molestation, on the part 
either of master or workinen, in the various. 
relations arising between them. 4 Steph. 
Comm. 241, 


CRIMINAL LAW CONSOLIDA- 
TION ACTS. The statutes 24 & 25 Vict. 
ce, 94-100, passed in 1861, for the consolida- 
tion of the criminal law of England and Ire 
land. 4 Steph. Comm. 297. These impor- 
tant statutes amount to a codification of the 
modern criminal Jaw of England. 


CRIMINAL LETTERS. In Scotch law. 
A process used as tlie commencement ofa 
criminal proceeding, in the nature of a sum- 
mons issued by the lord advocate or his dep- 
uty. It resembles a criminal information at 
common law, 


CRIMINAL LIBEL. A libel which is 
punisbable criminally; one which tends to 
excite a breach of the peace. 


CRIMINAL PROCEDURE. The 
method pointed out by law for the apprelien- 


sion, trial, or prosecution, and fixing the 


punishment, of those persons who have 


broken or violated, or are supposed to have 


= 


CRIMINAL PROCESS 


oroken or violated, the laws preseribed for 


the regulation of the conduct of the people of | corn or grain. 


the community, and who have thereby laid 
themselves liable to fine or imprisonment or 
other punishment. 4 Amer. & Eng. Ene. 
Law, 700. 


CRIMINAL PROCESS. Process which 
issues to compel a person to answer for a 
erime or misdemeanor, 1 Stew. (Ala.) 27. 


CRIMINAL PROSECUTION. Anac- 
tion or proceeding instituted in a proper 
court on behalf of the public, for the purpose 
of securing the conviction and punishment 
of one accused of crime. 


CRIMINALITER. Criminally. This 
term is used, in distinction or opposition to 
the word “eivéliter,” civilly, to distinguish a 
criminal liability or prosecution from a civil 
one. 


CRIMINATE. To charge one with 
erime; to furnish ground for a criminal pres- 
ecution; to expose a person to a criminal 
charge, A witness cannot be compelled to 
answer any question which has a tendency to 
eriminate him. 


CRIMP. One who decoys and plunders 
sailors under cover of harboring them. 


Wharton. 
CRO, CROO. In old Scotch law. A 
weregild, A composition, satisfaction, or 


assythment for the slaughter of a man. 
CROCIA. The crosier, or pastoral staff. 


CROCIARIUS. 
went before the prelate. 


A cross-bearer, who 


Wharton. 


CROCKARDS, CROCARDS. A foreign 
eoin of base metal, prohibited by statute 27 
Edw. I. St. 3, from being brought into the 
realm. 4 Bi. Comm. 98; Crabb, Eng. Law, 
176. 


CROFT. A little close adjoining a dwell- 
ing-house, and inclosed for pasture and till- 
age or any particular use. Jacob. A small 
place fenced off in which to keep farm-cattle, 
Spelman. The word is now entirely obso- 
lete. 


CROISES. Pilgrims; so called as wear- 
ing the sign of the cross on their upper gar- 
ments. Britt. c. 122. The knights of the 
order of St. John of Jerusalem, created for 
the defense of the pilgrims. Cowell; Blount. 


CROITHIR. A erofter; one holding a 
croft. 


303 


CROSS-COMPLAINT 
CROP. The products of the harvest in 
Emb!ements. 


CROPPER. One who, having no inter- 
est in the land, works it in consideration of 
receiving 2 portion of the crop for his labor. 
2 Rawle, 11. 


The difference between a tenant and a cropper 
is: A tenant has an estate in the land for the 
term, and, consequently, he has a right of property 
in thecrops. Until division, the right of property 
and of possession in the whole isthe tenant’s. A 
cropper has no estate in the land; and, although 
he has in some sense the possession of the crop, it 
is the possession of a servant ouly, and is, in law, 
that of the landlord, who must divide off to the 
cropper his share. 71 N.C. 7. 


CROSS. A mark made by persons who 
are unable to write, to stand instead of a sig- 
nature; usually made in the form of a Mal- 


| tese cross. 


As an adjective, the word is applied to 
yarious demands and proceedings which are 
connected in subject-matter, but opposite or 
contradictory in purpose or object. 


CROSS-ACTION, An action brought 
by one who is defendant in a suit against 
the party who is plaintiff in such suit, upon 


a cause of action growing out of the same 


transaction which is there in controversy, 
whether it be a contract or tort. 


CROSS-APPEAL. Where both parties 
to a judgment appeal therefrom, the appeal 
of cach is called a “cross-appeal” as regards 
that of the other. 3 Steph. Comm. 581. 


CROSS-BILL. Inequity practice, One 
which is brought by a defendant in a suit 
against a plaintiff in or against other defend- 
ants in the same suit, or against both, touch- 
ing the matters in question in the original 
bill. Story, Eq. P}. § 389; Mitf. Eq. Pl. 80. 

A eross-bill is a bill brought by a defendant 
against a plaintiff, or other parties in a former bill 
depending, touching the matter in question in that 
bill. It is usually brought either to obtain a nec- 
essary discovery of facts in aid of the defense to 
the original bill, or to obtain full relief to all par 
ties in reference to the matters of the original bill 
It is to be treated as a mere auxiliary suit 17 
How. 591; 35 N. H. 235. 

A eross-bill is a species of pleading, used for the 
purpose of obtaining a discovery necessary to the 
defense, or to obtain some relief founded on the 
collateral claims of the party defendant to the 
original suit. 14 Ga. 167. 


Also, if a bill of exchange or promissory 
note be given in consideration of another bill 
or note, it is called a “eross” or “counter” 
bill or note. 


CROSS-COMPLAINT. Incods practice. 


{ Whenever the defendant secks ailirmative re- 


CROSS-DEMAND 


lief agalast any party, relating to or depending 
upon the contract or transaction upon which 
the action is bronght, or affecting the property 
to which the action relates, he may, in addi- 
tion to his answer, file at the same time, or 
by permission of the court subsequenily, a 
eross-complaint, The cross-complaint must 
be served upon the parties affected thereby, 
and such parties may demur or answer thereto 
as to the originalcomplainl. Code Civil Proc. 
Cal. § 442. 


CROSS-DEMAND. Where a person 
against whom a demand is made by another, 
in his turn makes 2 demand against that 
other, these mutual demands are called “cross- 
demands.” <A set-off is a familiar example. 


CROSS-ERRORS. Errors being assigned 
by the res)ondent in a writ of error, the er- 
rors assigned on both sides are called “crosa- 
errors,” 


CROSS-EXAMINATION. In practice. 
The examination of a witness upon a trial or 
hearing, or upon taking a deposition, by the 
party opposed to the one who produced him, 
upon his evidence given in chief, to test its 
truth, to further develop it, or for other pur- 
poses. 


CROSS-REMAINDER. Where land is 
devised or conveyed to two or more persons 
as tenants in common, or where different 
parts of the same land are given to such ‘per- 
sons in severalty, with such limitations that, 
upon the determination of the particular es- 
tate of either, his share is to pass to the other, 
to the entire exclusion of the ultimate re- 
mainder-man or reversioner until all the par- 
ticular estates shall be exhausted, the re- 
mainders so limited are called “cvoss-remain- 
ders.” In wills, such remainders may arise 
by implication; but, in deeds, only by express 
limitation. See 2 Bl. Comm. 381; 2 Washb. 
Real Prop. 233; 1 Presb. Est, 94. 


CROSS-RULGES. ' These wererules where 
each of the opposite litigants obtained a rule 
nisi, a3 the plaintiff to increase the damages, 
and the defendant to entera nonsuit, Whar- 
ton. 


CROSSED CHECK. A check crossed 
with two lines, between whicl are either the 
name of a bank or the words “and company,” 
in full or abbreviated. In the former case, 
the banker on whom it is drawn must not 
pay the money for the check to any other than 
the banker named; in the latter case, he must 
not pay it to any other than a banker. 2 
Steph. Comm. 118, note e. 


304 


ee eT ee eee EN 


CROWN PAPER 


CROWN. The sovereign power in a 
monarehy, especially in relation to the pun- 
ishment of crimes. “Felony is an offense of 
the crown.” Finch, Law, b. 1, ¢. 16. f 

An ornamental badge of regal power worn 
on the heid by sovereign princes. The word 
is frequently used when speaking of the sov- 
ereign herself, or the rights, duties, and pre 
rogatives belonging to her. Also a silver 
coin of the value of fiveshillings. Wharton. 


CROWN CASES. In Enslish law, 
Criminal prosecutions on behalf of the crown, 
as representing the public; causes in the 
eriminal courts. 


CROWN CASES RESERVED. In 
English law. Questions of law arising in 
criminwl trials at theassizes, (otherwise than 
by way of demurrer,) and not decided there, 
but reserved for the consideration of the 
court of criminal appeal. 


CROWN COURT. In English law. 
The court in which the crown cases, or crim- 
inal business, of the assizes is transacted. 


CROWN DEBTS. In English law. 
Debts due to the trown, which are put, by 
various statutes, upon a different footing 
froin those due to a subject. 


CROWN LANDS. The demesne lands 
of the crown, 


CROWN LAW. Criminal law in Eng- 
land is sometimes so termed, the crown be 
ing always the prosecutor in criminal pro- 
ceedings. 4 Bl. Comm. 2. 


CROWN OFFICE. The criminal side 
of the court of king’s bench. The king’s 
attorney in this court is called “master of 
the crown office.” 4 1. Comm. 308. 


. CROWN OFFICE IN CHANCERY. 
One of the offices of the English high court 
of chancery, now transferred to the high 
court of justice. Ths principal official, the 
clerk of the crown, is an ollicer of parlia- 
ment, and of the lord chancellor, in his non- 
judicial capacity, rather than an officer of 
the courts of law. 


CROWN PAPER. A paper containing 
the list of criminal cases which await the 
hearing or decision of the court, and partic- 
ularly of the court of queen’s bench; and it 
then includes all cases arising from informa- 
tions guo warranto, criminal informations, 
criminal cases brought up from inferior 
courts by writ of certiorvavi, and cases from 
the sessions. Brown, 


CROWN SIDE 


CROWN SIDE. The criminal depart- 
nent of the court of queen’s bench; the civil 
department or branch being called the “plea 
side.” 4 BI. Counm. 265. 


CROWN SOLICITOR. In England, 
the solicitor to the treasury acts, in state 
prosecutions, as solicitor for the crown in 
preparing the prosecution. In Ireland there 
are ollicers called “crown solicitors” attached 
to each circuit. whose duty it is to get up 
every case for the crown in criminal prosecu- 
tions. They are paid by salaries. There is 
no such system in England, where prosecu- 
tions are conducted by solicitors appointed 
by the parish, or other persons bound over 
to prosecute by the magistrites on each com- 
mittal; but in Scotland the still better plan 
exists of a crown prosecutor (ealled the “ proc- 
urator-tiscal,” and being a subordinate of 
the lord-advocate) in every county, who pre- 
pares every criminal! prosecution. Wharton, 


CROWNER. In old Seotch law. Cor- 


oner; a coroner. 


GROY. InoldEnglishlaw. Marsh land. 


Blount. 


CRUCE SIGNATI. Inold English law. 
Signed or marked with a cross. Pilgrims to 
the holy land, or crusaders; so called because 
they wore the sign of the cross upon their 
garments. Spelman. 


CRUELTY. The intentional and ma- 
licions iniliction of physical suffering upon 
living creatures, particularly human beings; 
or, a8 applied to the latter, the wanton, mali- 
elous, and unnecessary infliction of pain upon 
the body, or the feelings and emotions; abu- 
jive treatment; inhumanity; outrage. 

Extreme cruelty is the iniliction of grievous 
bodily injury or grievous mental suffering 
upon the other by one party to the marriage. 
Civil Code Cal. § 94, 

As between husband and wife. Those acts 
which affect the life, the health, or even the com- 
fort, of the party aggrieved, and give a reasonable 
apprehension of bodily hurt, are called “cruelty.” 
What merely wounds the feelings is seldom ad- 
mitted to be cruelty, unless the act be accompanied 
with bodily injury, either actual or menaced. Mere 
austerity of temper, petulance of manners, rude- 
ness of language, a want of civil attention and ac 
commodation, even occasional sallies of passion, 
will not amount tolegal cruelty; a fortiori, the de- 
nial of little indulgeuces and particular accommo- 
dations, which the delicacy of the world is apt to 
number among its necessarics, is notcrueity. The 
negative descriptions of cruelty are perhaps the 
best, under the infinite variety of cases that may 
occur, by showing what is not cruelty. 1 Hagg. 
Const. 35; 4 Hing. Eee. 238, 311, 312, 

AM. DICT. LAW—20 


305 


CUI BONO 


Cruelty Includes both willfulness and malicious 
temper of mind with which an act is done, as well 
asa high degree of paininflicted. Acts merely ac- 
cidental, though they inflict great pain, are uot 
“cruel,” in the sense of the word as used in stat 
utes aguinst cruelty, 101 Mass. 34, 


CRUISH. <A voyage undertaken for a 
given purpose; a voyage for the purpose of 
making captures jure belli. 2 Gall. 538. 


A voyage or expedition in quest of vessels or 
fleets of the enemy which may be expected to sail 
in any particular track at acertain season of the 
year. The region in which these cruises arc per- 
formed is usually termed the “rendezvous,” or 
“eruising latitude.” Bouvier. 

Imports a definite place, as well as time of com- 
mencement and termination, unless such construc- 
tion is repelled by the context. When not other- 
wise specially agreed, a cruise begins and ends in 
the country to which a ship belongs, and from 
which she derives her commission. 2 Gall. 526. 


CRY. To eall out aloud; to proclaim; 
to publish; tosellatauction. “Toerya tract 
of land.” 1 Wash. (Va.) 335, (260.) 


CRY DE PAIS, or CRI DE PAIS. The 
hue and ery raised by the people in ancient 
times, where a felony had been committed 
and the constable was absent. 


CRYER. Anauctivneer. 1 Wash. (Va.) 
337, (262.) One whocalls outaloud; one who 
publishes or proclaims. See Crier, 


CRYPTA. 
ground, or under a church or cathedral. 
Cange. 


CUCKING-STOOL. An engine of cor- 
rection for common scolds, which in the Sax- 
on Janguage is said to signify the scolding- 
stool, though now it is frequently corrupted 
into ducking-stool, because the judgment was 
that, when the woman was placed therein, she 
should be plunged in the water for her punish- 
ment. It was also variously ealled a “tre- 
bucket,” “tumbrel,” or “eastigatory.” 38 
Inst. 219; 4 Bl. Comm, 169; Brown. 


CUEBILLETTE. A term of French mar- 
itimelaw. See A CUEILLETTE. 


CUI ANTE DIVORTIUM,. (To whom 
before divorce.) A writ for a woman di- 
vorced from her husband to recover her lands 
and tenements which she "ad in fee-simple 
or in tail, or for life, from nim to whom her 
husband alienated them during the marriage, 
when she could not gainsay it. Reg. Orig. 
233. 


CUI BONO. For whose good; for whose 
use or benelit. “Czuéi bono is ever of great 
weight in all agreements.” Parker, C. J., 


A chapel or oratory under- 
Du 


Mi 


CUICUNQUE ALIQUIS QUID, ETC. 306 


10 Mod. 135. Sometimes translated, for 
whiat good, for what useful purpose. 


Cuicunqwe aliquis quid concedit con- 
cedere videtur et id, sine quo res ipsa 
esse non potuit. 11 Coke, 52. Whoever 
grants anything to another is supposed to 
grant that also without which the thing it- 
self would be of no effect. 


CUI IN VITA. (To whom in life.) A 
writ of entry for a widow against him to 
whom her husband aliened her lands or tene- 
ments in his life-time; which must contain 
in it that during his life she could not with- 
stand it. Reg. Orig. 252; Fitzh, Nat. Brev. 
193. 


Cui jurisdictio data est, ea quoque 
concessa esse videntur, sine quibus ju- 
risdictio explicari non potest. To 
whomsoever a jurisdiction is given, those 
things also are supposed Lo be granted, with- 
out which the jurisdiction cannot be exer- 
cised. Die. 2,1, 2. The grant of jurisdic- 
tion implies the grant of all powers necessary 
to its exercise. 1 Kent, Comm. 339. 


Cui jus est donandi, cidem et ven- 
dendi et concedendi jus est. He who 
has the right of giving has also the right of 
selling and granting. Dig. 50, 17, 163. 


Cuilibet in arte sua perito est creden- 
dum. Any person skilled in his peculiar 
art or profession is to be believed, [%. ¢., 
when he speaks of matters connected with 
such art.] Co. Litt. 125¢; Shelf. Mar. & 
Div. 206. Credence should be given to one 
skilled in his peculiar profession, Broom, 
Max. 932. 


Cuilibet licet juri pro se introducto 
rentunciare. Any one may waive or re- 
nounce the benefit of a principle or rule of 
law that exists only for his protection. 


Cui licet quod majus, non debet quod 
minus est non licere. He who is allowed 
to do the greater ought not to be prohibited 
from doing the less. Ie who has authority 
to do the more important act ouglit not to be 
debarred from doing what is of less impor- 
tance. 4 Coke, 23. : 


Cui pater est populus non habet ille 
patrem. He to whom the people is father 
has nota father. Co. Litt. 123, 


Cuique in sua arte credendum est. 
Every one is to be believed in his own art. 9 
Mass. 227. 


CUL DE SAC 


Cujus est commodum ejus debot asse 
incommodum. Whose is the advantage, 
his also should be the disadvantage. 


* Cujus est dare, ejus est disponere, 
Wing. Max. 53. Whose it is to give, his it 
is to dispose; or, as Broom says, “the be 
stower of a gift has aright to reculate ita 
disposal.” Broom, Max. 459, 461, 463, 464. 


Cujus est divisio, alterius est electio. 
Whichever [of two parties] has the division, 
[of an estate,] the choice [of the shares] is 
the other’s. Co. Litt. 1666. In partition 
between coparceners, where the division ig 
made by the eldest, the rule in English law 
is that she shal! choose her share last. Id.; 
2 Bi. Comm, 189; 1 Steph. Comm, 323. 


Cujus est dominimm ejus est pericu- 
lum. ‘The risk lies upon the owner of the 
subject. Tray. Lat. Max. 114. 


Cujus est instituere, ejus est abrogare, 
Whose right it is to institute, his right it ts 
to abrogate. Broom, Max. 878, note. 


Cujus est solum ejus est usque ad 
colum. Whose is the svil, his it is up to 
the sky. Co. Litt. 4a¢. Ile who owns the 
soil, or surface of the ground, owns, or haa 
an exclusive right to, everything which is 
upon or above it to an indefinite height. 9 
Coke, 54; Shep. Touch. 90; 2 Bl. Comm. 18; 
3 Bl. Comm. 217; Broom, Max. 395. 


Cujus est solum, ejus est usque ad 
ecelui et ad inferos. To whomsveverthe 
soil belengs, he owns also to the sky and to 
the depths. The owner of a piece of land 
owns everything above and below it to an 
indefinite extent. Co. Litt. 4. 


Cujus juris (t. ¢., jurisdictionis) est 
principale, ejusdem juris erit accesso- 
rium. 2 Inst. 493. An accessory matter is 
subject to the same jurisdiction as its princi- 
pal. 


Cujus per errorem dati repetitio est, 
ejus consulto dati donatio est. He who 
gives a thing by mistake has a right to re- 
cover it back; but, if he gives designedly, it 
isa gift. Dig. 50, 17, 53. 


Cujusque rei potissima pars est prin- 
cipium. The chiefest part of everything is, 
the beginning. Dig. 1, 2,1; 10 Coke, 49a. | 


CUL DE SAC. (Fr. the bottom of a 
sack.) A blind alley; a street which is open 
at one end only. 


CULAGIUM 


CUILAGIUM. In old records. The lay- 
ing up aship in a dock, in order to be re- 
paired. Cowell; Blount. 


CULPA. A term of the civil law, mean- 
ing fault, neglect, or negligence. There are 
three degrees of culpa,—iata eulpa, gross 
fault or neglect; levis culpa, ordinary fault 
or neglect; levissima euipa, slight fault or 
neglect, —and the delinitions of these degrees 
are precisely the same as those in our law, 
Story, Bailm. § 18. This term is to be dis- 
tinguished from dolus, which means fraud, 
guile, or deceit. 


Culpa caret qui scit sed prohibere non 
potest. He is clear of blame who knows, 
jut cannot prevent. Dig. 50, 17, 50. 


Culpa est immiscere se rei ad se non 
pertinenti, 2Inst. 208. It is a fault for 
any one to meddle in a matter not pertaining 
to him. 


Culpa lata dolo wquiparatur. Gross 
negligence is held equivalent to intentional 
Wrong, 


Culpa tenet [teneat] suos auctores. 
Misconduct binds [should bind} its own au- 
thors. It is a never-failing axiom that every 
one is accountable only for his own delicts. 
Ersk. Inst. 4, 1, 14. 


CULPABILIS. Lat. In old English law. 
Guilty. Culpabilis de intrusione,—guilty of 
intrusion. Fleta, lib. 4, c. 380, § 11. 


CULPABLE. Means not only criminal, 
but censurable; and, when the term is ap- 
plied to the omission by a person to preserve 
the means of enforcing his own rights, cen- 
surable ig more nearly an equivalent. Ashe 
has merely lost a vight of action which 
né might voluntarily relinquish, and has 
wrenged nobody but himseif, culpable neg- 
leet conveys the idea of neglect which exists 
where the loss can fairly be ascribed to the 
party’s own carelessness, improvidence, or 
folly, 8 Allen, 121. 


CULPABLE HOMICIDE. Described 
as a crime Varying from the very lowest cul- 
pability, up to the very yerge of murder. 
Lord Moncrieff, Arkley, 72. 


Culpe pona par csto. Poona ad men- 
suram delicti statuenda est. Let the pun- 
ishinent be proportioned to the crime. Pun- 
ishment is to be measured by the extent of 
the offense. 


CULPRIT. A person who is indicted for 
a criminal offense, but not yet convicted. 


307 


| piece of ground. 


CUM DE LUCRO, ETC. 


It is not, however, a techical term of the 
law; and in its vernacular usage it seems to 
imply only 2 light degrea of censure or moral 
reprobation, 

Blackstone believes it an abbreviation of the old 
forms of arraignment, whereby, on the prisouer’s 
pleading not guilty, the clerk would respond, “¢eul- 
pabilis, prit,” i. e., he is guilty and the crown is 
ready. It was (he says) the via voce replication, 
by the clerk, on behalf of the crown, to the pris- 
oner’s pleaof non culjubilis; prit being atechnic- 
al word, anciently in use in the formula of join- 
ing issue. 4 Bl. Comm, 339. 

Buta more plausible explanation is that given by 
Donaldson, (cited Whart. Lex.,) as follows: The 
clerk asks the prisoner, “Are you guilty, or not 
guilty?” Prisoner, “Not guilty.” Clerk, *Qwit 
paroit, [may it prove so.] How will you be tried?” 
Prisoner, “By God and my country.” These words 
being hurried over, came to sound, “Culprit, how 
will you be tried?” The ordinary derivation ig 
from eulpa. 

CULRACH. In old Scotch law, A 
species of pledge or cautioner, (Scottieé, back 
borgh, ) used in cases of the replevin of persons 
from one man’s court to ancother’s, Skene, 


CULTIVATED. A field on which a crop 
ot wheat is growing is a cultivated field, al- 
though not a stroke of labor may have been 
done in it since the seed was put in the 
ground, and it is acultivated field after the 
crop is removed. Ibtis, strictly, a cultivated 
18 Tred. 36. 


CULTURA. A parcel of arable land, 
Blount. 


CULVERTAGHE. Inold Englishlaw. A 
base kindofslavery. The confiscation or for- 
feiture which takes place when a lord seizes 
his tenant’s estate. Blount; Du Cange. 


Cum actio fuerit mere criminalis, in- 
stitui poterit ab initio criminaliter vel 
civiliter. When an action is merely crimi-+ 
nal, it can be instituted from the beginning 
either criminally or civilly. Bract. 102. 


Cum adsunt testimonia rerum, quid 
opus est verbisP When the proofs of facts 
are present, what need is there of words? 2 
Bulst. 53. 


Cum aliquis renunciaverif societati, 
soivitur societas, When any partner re- 
nounces the partnership, the partnership is 
dissolved. Tray. Lat. Max. 118, 


Cum confitente sponte mitius est 
agendum. 4Inst.66. Oneconfessing will- 
ingly should be dealt with more leniently. 


Cum de lucro duorum qureritur, me- 
lior est causa possidentis. When the 
quest.un is as to the gain of two persons, the 


CUM DUO INTER SE, ETC. 


cause of him who is iu possession is the bet- 
ter. Dig. 50, 17, 126. 


Cum duo inter se pugnantia reperi- 
untur in testamento, ultimum ratum 
est. Where two things repugnant to each 
other are found in a will, the last shall stand. 
Co. Litt. 1126; Shep. Touch. 451; Broom, 
Max. 588. 


Cum duo jura concurrunt in una 
persona sequin est ac si essent in duo- 
bus. When two rights meet in one person, 
it is the same as if they were in two persons. 


CUM GRANO SALIS. (With a grain 


of saif.} With allowance for exaggeration. | 


Cum in corpore dissentitur, apparet. 
nullam esse acceptionem. When there is 
a disagreement in the substance, it appears 
that there is no acceptance. 12 Allen, 44. 


Cum in testamento ambigue aut eti- 
Am perperam scriptum est benigne in- 
terpretari et secundum id quod credi- 
bile est cogitatum credendum est. Dig. 
34, 5,24, Where an ambiguous, or even an 
erroneous, expression occurs in a will, it 
should be construed liberally, and in accord- 
ance With the testator’s probable meaning. 
Broom, Max. 568. 


Cum legitimee nuptie factee sunt, pa- 
trem liberi sequuntur. Children born 
under a legitimate marriage follow the con- 
dition of the father. 


CUM ONERE. With the burden; sub- 
ject to an incumbrance or charge. Whit is 
taken cum onere is taken subject to an exist- 
ing burden or charge. 


Cum par delictum est duorum, sem- 
per oneratur petitor et melior habetur 
possessoris causa. Dig.50,17,154. When 
both parties are in fault the plaintiff must 
always fail, and the cause of the person in 
possession be preferred. 


CUM PERA ET LOCULO. With 
satchel and purse. A phrase in old Scotch 
law. 

CUM PERTINENTIIS. 
purtenances. Bract. fol. 73d. 


With the ap- 


CUM PRIVILEGIO. Theexpression of 
the monopoly of Oxford, Cambridge, and the 
royal printers to publish the Bible. 


Cum quod ago non valet ut ago, 
valeat quantum valere potest. 4 Kent, 
Comm. 493. When that whieh I de is of no 


308 


| 


| 
| 


CUMULATIVE VOTING 


eifect as I do it, it shall have as much effect 
as it can; ¢. ¢., in some other way. 


CUM TESTAMENTO ANNEXO. L 
Lat. Withthe willannexed. A term applied 
to administration granted where a testator 
makes an incomplete will, without naming 
any executors, or where he names incapable 
persons, or where the executors named refuse 
toact. 2 Bl. Comm. 503, 504, 


CUMULATIVE. Additional; heaping 
up; increasing; forming an aggregate. The 
word signifies that two things are to be added 
Logether, instead of one being « repetition o1 
in substitution of the other. 


CUMULATIVE EVIDENCE.  Adai- 
tional or corroborative evidence to the same 
point. That which goes to prove what has 


, already been established by other evidence. 


i a 


20 Conn. 805; 28 Me. 376; 24 Pick. 246. 


All evidence material to the issue, after any such 
evidence has been given, is in a certain senso cu- 
mulative; that is, is added to what bas been given 
before. Itteuds to sustain the issue. But cumu- 
lative evidence, in legal phrase, means evidence 
from the same or & new witness, simply repeating, 
iu substanceand effect, or adding to, what has been 
before testified to. 43 Barb. 212. 

Evidence is not cumulative merely because it 
tends to establish the sume ultimate or principally 
controvertcd fact. Cumulative evidence is addi- 
tional evidence of the sume kind to the same point. 
43 lowa, 177. 


CUMULATIVE LEGACIES. These 
are legacies so called todistinguish them from 
legacies which are merely repeated. In 
the construction of testamentary instruments, 
the question often arises whether, where a 
testutor has twice bequeathed a legacy to the 
sume person, the legutee is entitled to both, 
or only to one of them; in other words, 
whether the second legacy must be considered 
as a mere repetition of Lhe first, or as cumula- 
tive, 7. ¢., additional. In determining this 
question, the intention of the testator, if it 
appears on the face of the instrument, pre- 
vails. Wharton. 


CUMULATIVE REMEDY. Aremedy 
created by statute in addition to one which 
still remains in force, 


CUMULATIVE SENTENCHS. Sepa- 
rate sentences (each additional to the others) 
imposed upon adefendant who has been con- 
victed upon an indictment containing several 
counts, each of such counts charging a dis- 
tinct offense. 


CUMULATIVE VOTING. A system 
of voting, by which the elector, having a 
number of voles equal to the nunaber of ofti- 


eers to be chosen, is allowed to concentrate 
the whole number of his votes upon one per- 
son, or to distribute them as he may see fit. 
For example, if ten directors of a corpora- 
tion are to be elected, then, under this sys- 
tem, the voter may cast ten votes for one per- 
son, or five votes for each of two persons, étc. 
It is intended to secure representation of a 
minority. 
CUNADES. 


alliance; relation by marriage. 
pt. 4, tit. 6, 1. 5. 


CUNEATOR. A coiner. 
Cuneare, to coin. Cuneus, 
which tocoin. Cuneata, coined. 
Spelman. 


CUNTEY-CUNTEY. In old English 
law. <A kind of trial, as appears from Bract. 
lib. 4, tract 3, ca. 18, and tract 4, ca. 2, 
where it seems to mean, one by the ordinary 
jury. 


In Spanish law. Affinity; 
Las Partidas, 


Du Cange. 
the die with 
Du Cange; 


CUR. A common abbreviation of curia, 
CURA. Lat. Care; charge; oversight; 
guardianship. 


In the civil law. A species of guardian- 
ship which commenced at the age of puber- 
ty, (when the guardianship called “tutela” 
expired, ) and continued to the completion of 
the twenty-fifth year. Inst. 1, 23, pr.; Id. 
1, 25, pr.; Hallifax, Civil Law, b. 1, ¢. 9. 


CURAGULOS. One who takes cure of 
a thing. 


CURATE. In ecclesiastical law. Prop- 
erly, an incumbent who has theewre of souls, 
but now generally restricted to signify the 
spiritual assistant of arector or vicar in his 
eure. 
the English church, who represents the proper 
incumbent; being regularly employed either 
to serve in his absence or as his assistant, as 
the ease may be. 1 Bl. Comm. 393; 3 Steph. 
Comm. 88; Brande. 


CURATEUR. In French law. A per- 
son charged with supervising the admin- 
istration of the affairs of an emancipated 
minor, of giving him advice, and assisting 
him in the important acts of such adminis- 
tration. Duverger. 


CURATIO. In thecivil law. 
er or duty of managing the property of him 
who, either on account of infancy or some 
defect of mind or body, cannot manage his 
ownatifairs. he duty of acurator or guard- 
fan. Calvin. 


An officiating temporary minister in | 


| the suit. 


The pow- | 


CUNADES 309 


CURFEW 


CURATOR. In the civil law. A per- 
s0n who is appointed to take care of any- 
thing for another. A guardian. One ap- 
pointed to take care of the estate of a minor 
above a certain age, a lunatic, a spendthrift, 
or other person not regarded by the law as 
competent to administer itfor himself. The 
title was also applied to a variety of public 
officers in Roman administrative law. 

In Scotch law. Theterm meansa guard- 
ian. 

In Louisiana. A person appointed to 
take care of the estate of an absentee. Civil 
Code La. art. 50. 

In Missouri. The term “curator” has 
been adopted from the civil law, and it is 
applied to the guardian of the estate of the 
ward as distinguished from the guardian of 
his person, 49 Mo. 117. 


CURATOR AD HOC. Inthe civillaw. 
A guardian for this purpose; a special guard- 
ian. 


CURATOR AD LITEM. Guardian for 
In English Jaw, the corresponding 
phrase is “guardian ad litem.” 


CURATOR BONIS. In the civil law. 
A guardian or trustee appointed to take care 
of property in certain cases; as for the ben- 
efit of creditors. Dig. 42, 7. 

In Scotch law. The term is applied to 
guardians for minors, lunatics, etc. 


CURATORES VIARUM. 
of the highways. 


CURATORSHIP. The office of a cura- 
tor. Curatorship differs from tutorship, 
(q.v.,) in this; that the latter is instituted for 
the protection of property in the first place, 
and, secondly, of the person; while the fermer 
is intended to protect, first, the person, and 
secondly, the property. 1 Lec, El. Dr. Civ. 
Rom, 241. 


CURATRIX. A woman who has been 
appointed to the office of curator; a female 
guardian. 4 Grat. 227. 


Curatus non habet titulum. A curate 
hag no title, [to tithes.] 3 Bulst. 310. 


CURE BY VERDICT. See Arprer By 
VERDICT. 

CURE OF SOULS. In ecclesiastical 
law. The ecelesiastical or spiritual charge 
of a parish, including the usual and regular 
duties of a minister in charge. 

CURFEW. An institution supposed to 
have been introduced into England by order 


Surveyors 


CURIA 


of William the Conqueror, which consisted | 


In the ringing of a bell or bells at eight 
o’clock at night, at which signal the people 
were required to extinguish all lights in their 
dwellings, and to put out or rake up their 


fires, and retire to rest, and all companies to. 


disperse. The word is probably derived from 
the French couvre feu, to cover the fire. 


CURIA. In old European law. A 
court. The palace, household, or retinue of 
a sovereign. A judicial tribunal or court 
held in the sovereign’s palace. <A court of 
justice. The civil power, as distinguished 
from the ecclesiastical. A manor; a noble- 
man’s house; the hall of a manor. A piece 
of ground attached to a house; a yard or 
court-yard. Spelman. <A lord’s court held 
in his manor. The tenants who did suit and 
service at the lord’s court. A manse. Cowell. 


In Roman law, A division of the Ro- 
man people, said to have been made by 
Romulus. ‘They were divided into three 
tribes, and each tribe into ten cuvie, making 
thirty cuvie in all. Spelman. 

The place or building in which each euria 
assembled to offer sacred rites. 

The place of meeting of the Roman senate; 
the senate house. 

The senate liouse of a province; the place 
where the decwriones assembled. Cod. 10, 
31,2. See DecurRtIO, 


CURIA ADMIRALITATIS. Thecourt 
of admiralty. 


CURIA ADVISARI VULT. L. Lat. 
The court will advise; the court will con- 
sider. A phrase frequently found in the re- 
ports, signifying the resolution of the court 
to suspend judgment in a cause, after the 
argument, until they have deliberated upon 
the question, as where there is a new or dif- 
ficult point involved. It is commonly ab- 
breviated to cur. adv. vult, or ¢c. a. v. 


CURIA BARONIS, or BARONUM. 
In old English law. Acourt-baron. Fleta, 
iib.2, c. 33. 


Curia cancellarise officina justitie. 2 
Inst. 552. The court of chancery is the work- 
shop of justice. 


CURIA CHRISTIANITATIS. The 
ecclesiastical court. 


CURIA CLAUDENDA. The name of 
a writ to compel another to make a fence or 
wall, which he was bound to make, between 
his land and the plaintiff’s. Reg. Orig. 155. 
Now obsolete. 


310 


CURIOSA ET CAPTIOSA, ETC. 


CURIA COMITATUS. The county 
court, (q. v.) 


CURIA CURSUS AQUH. A court 
held by the lord of the manor of Gravesend 
for the better management of barges and 
boats plying on the river Thames between 
Gravesend and Windsor, and also at Grayes- 
end bridge, ete. 2 Geo. II. c. 26. 


CURIA DOMINTI. In old English law. 
The lord’s court, house, or hall, where all 
the tenants met at the time of keeping court. 
Cowell. 


CURIA LEGITIME AFFIRMATA. 
A phrase used in old Scotch records to show 
that the court was opened in due and lawful 
manner. 


CURIA MAGWA. Inold English law. 
The great court; one of the ancient names of 
parliament. 


CURIA MAJORIS. In old English law, 
The mayor's court. Calth. 144. 


CURIA MILITUM. A court so called, 
anciently held at Carisbrook Castle, in the 
Isle of Wight. Cowell. 


CURIA PALATII. The palace court. 
It was abolished by 12 & 18 Vict. e. 101. 


Curia parliamenti suis propriis legi- 
bus subsistit. 4 Inst. 50. The court of 
parliament is governed by its own laws. 


CURIA PEDIS PULVERIZATI. In 
old English law. The court of piedpoudre 
or piepouders, (q. 0.) 3 BI. Comm. 32. 


CURIA PENTICIARUM. Acourt held 
by the sheriff of Chester, in a place there 
called the “Pendice” or “ Pentice;” proba- 
bly it was so called from being originally 
held under a pent-house, or open shed coy- 
ered with boards. Blount. 


CURIA PERSONZ. In old records. 
A. parsonage-house, or manse. Cowell. 


CURIA REGIS. The King’s court. A 
term applied to the auia regis, the bancus, 
or communis bancus, and the tter or eyre, as 
being courts of the king, but especially te 
the aula regis, (which title see.) 


CURIA CHRISTIANITATIS. Courta 
of Christianity; ecclesiastical courts. 


GURIALITY. InScotechlaw. Curteasy. 
Also the privileges, prerogatives, or, perhaps, 
retinue, of a court. 


Curiosa et captiosa interpretatio in 
lege reprobatur, A curious [overnice or 


CURNOCK 


subtle] and captious interpretation is repro- 
hated inlaw. 1 Bulst. 6. 


CURNOCK. In old English law. A 
measure containing four bushels or half a 
quarter of corn. Cowell; Blount. 


CURRENCY. Coined..money and such 
bank-notes or other paper money as are au- 
thorized by law and do in fact circulate from 
hand to hand as the medium of exchange. 


CURRENT. Running; now in transit; 
whatever is at present in course of passage; 
as “the current month.” When applied to 
money, it means “lawful;” current money is 
equivalent to lawful money. 1 Dall. 124. 


CURRENT FUNDS. This phrase means 
gold or silver, or something equivalent there- 
to, and convertible at pleasure into coined 
money. 4 Ala, 90. 


CURRENT MONEY. The currency of 


the country; whatever is intended to and 


does actually circulate us currency; every spe- 
cies of coin or currency. 5 Lea,96. In this 
phrase the adjective “current” 1s not synon- 
ymous with “convertible.” It is employed 
to deseribe money which passes from hand 
to hand, from person to person, and circu- 
lates through the community, and is gener- 
ally received. Money is current which is re- 


ceived as money in the common business | 


transactions, and is the common medium in 
barter and trade. 41 Ala. 321. 


CURRICULUM. The year; of the course 
of a year; the set of studies fora particular 
period, appointed by a university. 


CURRIT QUATUOR PEDIBUS. L. 
Lat. It runs upon four feet; or, as some- 
times expressed, it runs upon all fours. A 
phrase used in arguments to signify the en- 
tire and exact application of a case quoted. 
“It does not follow that they run quatuor 
pedibus.” 1 W. Bl. 145. 


Currit tempus contra desides et sui 
juris contemptores. Time runs against 


the slothful and those who neglect their | 


Bract. fols. 1006, 101. 


CURSITOR BARON. An officer of the 
court of exchequer, who is appointed by pat- 
ent under the great seal to be one of the bar- 
ons of the exchequer. The office was abol- 
ished by St. 19 & 20 Vict. c. 36. 


CURSITORS. Clerks in the chancery of- 
fice, whose duties consisted in drawing up 
those writs which were of course, de cursu, 
whence theirname, They were abolished by 


rights. 


311 


eee SS a ee 


CURTIS 
S8t.5 & 6 Wm. TV. c. 82. Spence, Eq. Jur. 
238; 4 Inst. 82. 


CURSO. Inold records. A ridge. 
sones terre, ridges of land. Cowell. 


CURSOR. An inferior officer of the pa- 
‘pal court, 


Cur- 


Cursus curie est lex curize. 3 Bulst. 
53. The practice of the court is the law of 
the court. 


CURTESY, The estate to which by com- 
mon law a man is entitled, on the death of 
his wife, in the lands or tenements of which 
she was seised in possession in fee-simple or 
in tail during their coverture, provided they 
have had lawful issue born alive which might 
have been capable of inheriting the estate. 
It is a freehold estate for the term of his nat- 
ural life. 1 Washb. Real Prop. 127; 2 Bl. 
Comm. 126; Co. Litt. 30a. 


CURTEYN. The name of King Edward 
the Confessor’s sword, It is said that the 
point of it was broken, as an emblem of 
merey. (Mat. Par. in Hen. IIL.) Wharton. 


CURTILAGE. The inclosed space of 
ground and buildings immediately surround- 
ing a dwelling-house. 


In its most comprehensive and proper legal sig- 
Dification, it includes all that space of ground and 
buildings thereon whichis usually inclosed with- 
ju the general fence immediately surrounding a 
principal messuage and outbuildings, and yard 
closely adjoining to a dwelling-house, but it may 
be large enough for eattle to be Jevant and couch- 
ant therein. 1 Chit. Gen. Pr. 175. 

The curtilage of a dwelling-house is a space, 
necessary and convenient and habitually used for 
the family purposes, and the carrying on of domes- 
tic employments. It includes the garden, if there 
be one, and it need not be separated from other 
lands by fence. 31 Me. 522; 10 Cush. 480; 29.N.J. 
Law, 474. 

The curtilage is the court-yard in the front or 
rear of a house, or at its side, or any piece of 
ground lying near, inclosed and used with, the 
house, and necessary for the convenient ocecupa- 
tion of the house. 10 Hun, 154, 

In Michigan the meaning of curtilage has been 
extended to include more than an inclosure near 
| the house. 2 Mich. 250. 


CURTILES TERRA. In old English 


jaw. Court lands. Cowell. See Court 
LANDS. 


CURTILLIUM. A curtilage; the area 
or Space within the inclosure of a dwelling- 
house, Spelman. 


CURTIS. A garden; a space about a 
house; a house, or manor; a court, or palace; 
a court of justice; a nobleman’s residence. 
Spelman. 


CUSSORE 


CUSSORE, A term used in Hindostan 
for the discount or allowance made in the 
exchange of rupees, in contradistinetion to 
batta, which is the sum deducted. Enc. 
Lond. 


CUSTA, CUSTAGIUM, CUSTANTIA. 
Costs. € 


CUSTODE ADMITTENDO, CUS- 
TODE AMOVENDO. Writs for the ad- 
mitting and removing of guardians, 


CUSTODES. In Roman law. Guard- 
ians; observers; inspectors. Persons who 
ected as inspectors of elections, and who 
eounted the votes given. Tay]. Civil Law, 
1938. 

In old English law. Keepers; guardi- 
ans; conservators. 

Custodes pacis, guardians of the peace. 1 
Rl, Comm. 349. 


CUSTODES LIBERTATIS ANGLIA 
AUCTORITATE PARLIAMENTI. 
The style in which writs and all judicial pro- 
cesses were made out during the great revo- 
lution, from the execution of King Charles 
I. till Oliver Cromwell was declared protector. 


CUSTODIA LEGIS. 
the law. 


CUSTODIAM LEASE. In Englishlaw. 
A grant from the crown under the exchequer 
seal, by which the custody of lands, ete., seised 
in the king’s hands, is demised or committed 
to some person as custodee or lessee thereof. 
Wharton. 


In the custody of 


CUSTODY. The care and keeping of 
anything; as when an article is said to be 
“in the custody of the court.” Also the de- 
tainer of a man’s person by virtue of lawful 
process or authority; actual imprisonment. 
59 Pa. St. 320. 

In a sentence that the defendant “be in 
custody until,” etc., this term imports actual 
imprisonment. ‘The duty of the sheriff under 
such a sentence is not performed by allowing 
the defendant to go at large under his gen- 
eral watch and control, but so doing renders 
him liable for an escape. 59 Pa, St. 320. 


CUSTOM. A usage or practice of the 
people, which, by common adoption and ac- 
quiescence, and by long and unvarying habit, 
has become compulsory, and has acquired 
the force of a law with respect to the place 
or subject-matter to which it relates. 

A law not written, established by long us- 
age, and the consent of our ancestors. Termes 


312 


CUSTOM OF MERCTIANTS 


de la Ley; Cowell; Bract. fol. 2. If it be 
universal, it is common law; if particular to 
this or that place, it is then properly custom. 
3 Salk. 112. 

Customs result from a long series of ac- 
tions constantly repeated, which have, by 
such repetition, and by uninterrupted acqui- 
escence, acquired the force of a tacit and 
common consent. Civil Code La. art. 3. 

It differs from prescription, which is personal 


| and is annexed to the person of the owner of a 


particular estate; while the other is Jocal, and re- 
lates to a particular district. An instance of the 
latter occurs where the question is upon the man- 
ner of conducting a particular branch of trade at 
a certain place; of the former, where a certain 
person and his ancestors, or these whose estates 
he has, have been entitled to a certain advantage 
or privilege, as to have common of pasture in a 
certain close, orthelike. Thedistinction has been 
thus expressed: “While prescription is the mak- 
ing of a right, custom is the making of a law.” 
Lawson, Usages & Cust. 15, note 2. 

Customs are either general or particular. 
General customs are such as preyail through- 
out a country and become the law of the 
country; and their existence is to be deter- 
mined by thecourt. Particular custums are 
such as prevail in some county, city, town, 
parish, or place. 23 Me. 90. 


CUSTOM-HOUSH. In administrative 
law. The house or office where commodities 
are entered for importation or exportation; 
where tho duties, bounties, or drawbacks 
payable or receivable upon such importation 
or exportation are paid or received; and 
where ships are cleared out, ete. 


CUSTOM-HOUSE BROKER. One 
whose occupation it is, as the agent of oth- 
ers, to arrange entries and other custom-house 
pipers, or transact business, at any port of 


| entry, relating to the importation or expor- 


tation of goods, wares, or merchandise. 14 
St. at Large, 117. 

A person authorized by the commissioners 
of customs to act for parties, at their option, 
in the entry or clearance of ships and the 
transaction of general business. Wharton. 


Custom is the best interpreter of the 
law. 4 Inst. 75; 2 Eden, 74; 5 Cranch, 32; 
lserg. & R. 106. 


CUSTOM OF MERCHANTS. A sys- 
tem of customs or rules relative to bills of 
exchange, partnership, and other mercantile 
matters, and which, under the name of the 
“lex mereatoria,” or “law-mercliant,” has 
been ingrafted into, and made a part of, the 
common law. J] Bl. Comm. 75; 1 Steph. 
Comm. 54; 2 Burrows, 1226, 1228. 


CUSTOM OF YORK 


CUSTOM OF YORK. A custom of in- 
.estacy in the province of York similar to 
that of London. Abolished by 19 & 20 Vict. 
¢, 94, 


CUSTOMARY COURT-BARON. A 
court-baron at which copyholders might 
transfer their estates, and where other mat- 
fers relating to their tenures were Lransacted. 
3 Bl. Comm. 33. 


CUSTOMARY ESTATES. Estates 
which owe their origin and existence to the 
custom of the manor in which they are held. 
2 Bi. Comin. 149. 


CUSTOMARY FREEHOLD. In FEn- 
glish Jaw. A variety of copyhold estate, the 
evidences of the title to which are to be 
found upon the court rolls; the entries de- 
claring the holding to be according to the 
custom of the minor, but it is not said to be 
at the will of the lord. The incidents are 
similar to those of common or pure copyhold. 
LSteph. Comm. 212, 218, and note. 


CUSTOMARY SERVICES. Such as 
are due by ancient custom or prescription 
only. 

CUSTOMARY TENANTS. 
holding by custom of the manor. 


Tenants 


Custome serra prise stricte. Custom 
shall be taken [is to be construed] strictly. 
Jenk. Cent. 83. 


CUSTOMS. This term is usually applied 
to those taxes which are payable upon goods 
and merchandise imported or exported. Story, 
Const. § 949; Bac. Abr, “Smuggling.” 

The duties, toll, tribute, or tariff payable 
upon merchandise exported or imported. 
These are called “customs” from having been 
paid from time immemorial. Expressed in 
law Latin by custuma, as distinguished from 
consuetudines, which are usages merely. 
1 Bi. Comm, 314, 


CUSTOMS AND SERVICES annexed 
to the tenure of lands are those which the 
tenants thereof ows unto their lords, and 
which, if withheld, the lord might anciently 
have resorted to “a writ of customs and serv- 
ices” to compel them. Cowell. But at the 
present day he would merely proceed to eject 
the tenant as upon a forfeiture, or claim 
damages for the subtraction. Brown, 


CUSTOMS CONSOLIDATION ACT. 
The statute 16 & 17 Vict. c. 107, which has 
been frequently amended. See 2 Steph. 
Comm. 563. 


313 


CUSTOS TEMPORALIUM 


CUSTOMS OF LONDON. Particular 
customs within the city of London, with re- 
gard to trade, apprentices, widows, orphans, 
and a variety of other matters. 1 Bl. Comm. 
75; 1 Steph. Comm. 54, 55, 


CUSTOS. A custodian, guard, keeper, 
or warden; a magistrate. 


CUSTOS BREVIUM. The keeper of 
the writs. A principal elerk belonging to 
the courts of queen’s bench and common 
pleas, whose office it was to keep the writs 
returnable into thosecourts. The office was 
abolished by 1 Wm. LV... 5. 


CUSTOS FERARUM. 
Townsh. Pl. 265. 


CUSTOS HORREI REGII. Protector 
of the royal granary. 2 Bl. Coinm. 394. 


CUSTOS MARIS. In old English law. 
Warden of the sea. The title ofa high naval 
officer among the Saxons and after the Con- 
quest, corresponding with admiral. 


CUSTOS MORUM. The guardian of 
morals. The court of queen’s bench has been 
so styled. 4Steph. Comm. 377, 


CUSTOS PLACITORUM CORONA. 
In old English law. Keeper of the pleas of 
the crown. Bract. fol. 146. Cowell sup- 
poses this office to have been the same with 
the custos rotulorum, But it seems rather 
to have been another name for “coroner.” 
Crabb, Eng. Law, 150; Bract. fol. 1360, 


CUSTOS ROTULORUM. Keeper of 
the rolls. An officer in England who has the 
custody of the rolls or records of the sessions 
of the peace, and also of the commission of 
the peace itself. He is always a justice of 
the quorum in the county where appointed 
and is the principal civil officer in the coun- 
ty. 1). Comm. 349; 4 Bl. Comm. 272. 


CUSTOS SPIRITUALIUM. In En- 
glish ecclesiasticallaw, Keeper of the spirit- 
ualities. He who exercises the spiritual! ju- 
risdiction of a diocese during the vacancy of 
the see. Cowell. 


A gamekeeper. 


Custos statum heeredis in custodia ex- 
istentis meliorem, non deteriorem, fa- 
cere potest. 7 Coke, 7. A guardian can 
make the estate of an existing heir under his 
guardianship better, not worse. 


CUSTOS TEMPORALIUM. In En- 
glish ecclesiastical law. The person to whom 
a vacant see or abbey was given by the king, 
as supreme lord. His office was, aa steward 


| of the govds and protits, to give an account 


CUSTOS TERRA 3 


to the escheator, who did the like to the ex- 
chequer. 


CUSTOS TERRZ&. In old English 
law. Guardian, warden, or keeper of the 
land. 


CUSTUMA ANTIQUA SIVE MAG- 
NA, (Lat. Ancient or great duties.) The 
duties on wool, sheep-skin, or wool-pelts and 
leather exported were so called, and were 
payable by every merebant, stranger as well 
as native, with the exception that merchant 
strangers paid one-half as much again as 
natives. 1 Bl. Comm. 314. 


CUSTUMA PARVA ET NOVA. 
(Small and neweustoms.) Imposts of 8d. in 
the ponnd, due formerly in England from 
merchant strangers only, for all commodi- 
ties, as well imported as exported. This was 
usnally called the “aliens duty,” and was first 
granted in $1 Edw... 1 Bl. Comm. 314; 4 
Inst, 29, 


CUT. A wound made with a sharp instru- | 


ment. 


CUTCHERRY. In Hindu law. Cor. 
rupted from Xeehari. A court; a hall; an 
ollice; the place where any public business is 
transacted. 


CUTH, COUTH. Sax. 
ing. OUnewuth, unknown. 
LAUGH, UNOUTH. 


CUTHRED. A knowing orskillful coun- 
sellor. 


CUTPURSE. One who steals by the 
method of cutting purses; a common practice 
when men wore their purses at their girdles, 
as was once the custom. Wharton. 


CUTTER OF THE TALLIES. In 
old Englishlaw. An officer inthe exchequer, 
to whom it belonged to provide wood for the 
tallies, and to cut the sum paid upon them, ete, 


CUTWAL, KATWAL. The chief officer 
of police or superintendent of markets in a 
large town or city in India. 


CW. A hundred-weight; one hundred 
and twelve pounds. 11 B. Mon. 64. 


CY. In law French. Here. (Cy-apres, 
hereafter; cy-devant, heretofore.) Also as, 80. 


Known, know- 
See COUTHUT- 


CYCLE. A measure of time; aspace in 
which the same revolutions begin again; a 
periouical space of time. Enc. Lond. 


14 


CZAROWITZ 


CYNE-BOT, or CYNE-GILD. The 
portion belonging to the nation of the mulct 


| for slayin g the king, the other portion or were 


being due to his family. Blount. 


CYNEBOTE. A muletanciently paid by 
one who killed another, to the kindred of the 
deceased. Spelman. 


CYPHONWISM. That kind of punishment 
used by the ancients, and still used by the 
Chinese, called by Staunton the “wooden 
collar,” by which the neck of the malefactor 
is bent or weigheddown. Enc. Lond. 


CY-PRES. As near as [possible.] The 
rule of ey-p7es is a rule for the construction 
of instruments in equity, by which the inten- 
tion of the party is carried out es near as 
may be, when it would be impossible or illegal 
to give it literal effect. Thus, where a tes- 
tator attempis to create a perpetuity, the 
court will endeavor, instead of making the 
devise entirely void, to explain the will in 
such a way as to carry out the testator’s pen- 
eral intention as far as the rule against per- 
petuities will allow. So in the case of be 
quests to charitable uses; and particularly 
where the language used is so vague or un- 
certain that the testator’s design must be 
sought by construction. See 6 Cruise, Dig. 
165; 1 Spence, Eq. Jur. 532; 3 Hare, 12. 


CYRCE. In Saxon law. <A church. 


CYRICBRYCE. In Saxon law. A 
breaking intoa church. Blount. 
CYRICSCEAT. (From cyric, church, 


and sceat, a tribute.) In Saxon law. A 
tribute or payment due to the church. 
Cowell. 


CYROGRAPHARIUS. Inold English 
law. A eyrographer; an officer of the tance 
us, or court of common beneh. Fleta, lib. 2, 
c. 36. 


CYROGBAPHUM. A chirograph, 
(which see.) 


CZAR. The title of the emperor of Rus- 
sia, first assumed by Basil, the son of Basil. 
ides, under whom the Russian power began 
to appear, about 1740. 


CZARINA. The title of the empress of 
Russia. 


CZAROWITZ. The title of the eldest 
son of the ezar and czarina. 


D. The fourth letter of the English al- 
phabet. It is used as an abbreviation for a 
number of words, the more important and 
usual of which are as follows: 

1. Digestum, or Digesta, that is, the Di- 
gest or Pandects in the Justinian collections 
of the civil law. Citations to this work are 
sometimes indicated by this abbreviation, 
but more commonly by “Dig.” 

2. Dictum. A remark or observation, as 
in the phrase “obiter dictum,” (qg. 2.) 

3. Demissione. “On the demise,” An ac- 
tion of ejectment is entitled “Doe d. Stiles v. 
Roe;” that is, “ Doo, on the demise of Stiles, 
against Roe,” 

4. “Doctor.” Asin theabbreviated forms 
of certain academical degrees. “M. D.,” 
“doctor of medicine;” “LL.D.,” “doctor of 
laws;” “D. C. L.,” “doctor of civil law.” 

>. “District.” Thus, “U. §. Cir. Ct. W. 
D, Pa.” stands for “United States Circuit 
Court for the Western District of Pennsyl- 
vania.” 

6. “Dialogue.” Used only in citations to 
the work calied “Doctor and Student.” 


D. In the Roman system of notation, 
this letter stands for five hundred; and, when 
a horizontal dash or stroke is placed above 
it, it denotes five thousand. 


D. B. E. An abbreviation for de bene 
essé, (q. .) 


D.B.N. <An abbreviation for de bonis 
non,; descriptive of a species of administra- 
tion. 


D. C. An abbreviation standing either 
for “District Court” or “District of Colum- 
bia.” 

D. BH. R.I. C. An abbreviation used for 
De ea ve ita censiere, (concerning that mat- 
ter have so decreed,) in recording the decrees 
of the Roman senate. Tayl. Civil Law, 564, 
566. ; 

D. J. 
Judge.” 


D.P. An abbreviation for Domus Pro- 
ceyum, the house of lords. 


An abbreviation for “District 


D. 8S. An abbreviation for “Deputy Sher- 
iff. 3? 


D. 8. B. An abbreviation fo debitum 
gine brevi, or debit sans breve. 


D 815 


DAMAGE 


Me 


Da tua dum tua sunt, post mortem 
tune tua non sunt. 38 Bulst.18. Give the 
things which are yours whilst they are yours; 
after death they are not yours. 


DABIS? DABO. Lat. (Willyou give? 
I will give.) In the Roman law. One of 
the forms of making a verbal stipulation. 
Inst. 3, 15, 1; Braet. fol. 150. 


DACION. In Spanish law. The real 
and effective delivery of an object in the ex- 
ecition of & contract. 


DAGGE. A kind of gun. 
Tr, 1124, 1125. 


DAGUS, uv VAIS. 
the upper end of a hall, 


DAILY. Every day; every day in the 
week; every day in the week except one. A 
newspaper which is published six days in 
each week is a “daily” newspaper. 45 Cal. 
30, 


DAKER, or DIKER. 
Blount. 


DALE and SALE. Fictitious names of 
places, used in the English books, as exam- 
ples. “The manor of Dale and the manor of 
Sale, lying both in Vale.” 


DALUS, DAILUS, DAILIA. A certain 
measure of land; such narrow slips of past- 
ure as are left between the plowed furrows 
in arable land. Cowell. 


DAM. A construction of wood, stons, or 
other materials, made across a stream for the 
purpose of penning back the waters, 

‘This word is used in two different senses. 
It properly means the work or structure, 
raised to obstruct the flow of the waterina 


1 How. State 


The raised floor at 


Ten hides. 


| river; but, bya well-settled usage, it is often 


applied to designate the pond of water creat- 
ed by this obstruction. 19 N. J. Eq. 248. 
See, also, 44 N. H. 72. 


DAMAGE. Loss, injury, or deteriora- 
tion, caused by the negligence, design, or ac- 
cident of one person to another, in respect of 
the latter’s person or property. The word is 
to be distinguished from its plural,—“dam- 
ages,” — which means a compensation in 
money for a loss or damage. 

An injury produces a right in them who hava 


suffered any dumage by it to demand reparation of 
such damage from the authors of the injury. By 


DAMAGE-CLEER 


damage, we understand every loss or diminution 
of what is a man’s own, occasioned by the fault of 
another. 1 Ruth. Inst. 399. 


DAMAGE-CLEER. A fee assessed of 
the tenth part in the common pleas, and the 
twentieth part in the queen's bench and ex- 
chequer, out of all damages exceeding five 
marks recovered in those courts, in actions 
upon the case, covenant, trespass, etc., 
wherein the damages were uncertain; which 
the plaintiff was obliged to pay to the pro- 
thonotary or the oflicer of the court wherein 
he recovered, before he could have execution 
for the damages. This was originally a gra- 
tuity given to the prothonotaries and their 
clerks for drawing special writs and plead- 
ings; but it was taken away by statute, since 
which, if any officer in these courts took any 
money in the namo of damage-cleer, or any- 
thing in lieu thereof, he forfeited treble the 
yalue. Wharten. 


DAMAGE FEASANT or FAISANT. 
Doing damage. A term applied toa person’s 
eattle or beasts found upon another’s land, 
doing damage by treading down the grass, 
grain, etc. 3 Bl. Comm. 7, 211; Tomlins. 
This phrase seems to have been introduced 
in the reign of Edward IIL., in place of the 
older expression “en son damage,” (in damio 
suo.) Crabb, Eng. Law, 292. 


DAMAGED GOODS. Goods, subject to 
duties, whieh have received some injury 
either in the voyage home or while bonded 
in warehouse, 


DAMAGES. A pecuniary compensation 
or indemnity, which may be recovered in the 
courts by any person who has suffered loss, 
detriment, or injury, whether to his person, 
property, or rights, through the unlawful act 
or omission or negligence of another, 

A sum of money assessed by a jury, on 
finding for the plaintiff or suceessful party in 
an action, a8 a compensation for the injury 
done him by the opposite party. 2 Bl. Comm. 
438; Co. Litt, 2572, 2 Tidd, Pr. 869, 870. 

Every person who suffers detriment from 
the unlawful act or omission of another may 
recover from the person in fault a compen- 
sation therefor in money, which is called 
“damages.” Civil Code Cal. § 3281; Civil 
Code Dak. § 1940. 

In the ancient usage, the word “damages” was 
employed in two siguifications. According to 
Coke, its proper and general sense included the 
costs of suit, while its strict or relative sense was 
exclusive of costs. 10 Cole, 116, 117; Co. Litt. 


257; 9 Hast, 299. The latter meaning has alone 
survived 


316 


damages, and may be shown under the ad 


DAMAGES ULTRA 


Damages are either general or special. 
Damages for losses which necessarily result 
from the wrong sued for are called “general” 


damnum, or general allegation of damage; 
for the defendant does not need notice of 
such consequences to enable him to make 
his defense; he knows that they must exist, 
and will be in evidence. But if certain losses 
do not necessarily result from defendant's 
wrongful act, but, in fact, follow it as a 
natural and proximate consequence in the 
particular case, they are called “special,” and 
must be specially alleged, that the defendant 
may have notice and be prepared tu go into 
the inquiry. 28 Conn. 201, 212. 

“General” damages are such as the law pre 
sumes to flow from any tortious act, and may be 
recovered without proof of any amount. “Special” 
damages are such as actually flowed from the act, 
and must be proved in order to be recovered. 
Code Ga. 1882, § 2070, 

Damages may also be classed as direct and 
consequential. “ Di-ect” damages are such 
as follow immediately upon the act done. 
“Consequential” damages are such as are the 
necessary and connected effect of the tortious 
act, though to some extent depending upon 
other circumstances. Code Ga. 1882, § 3071. 

Another division of damages is into ligzui- 
dated and unliquidated; the former term 
being applicable when the amount thereof 
has been ascertained by the judgment in the 
action or by the specific agreement of the 
parties; while the latter denotes such dam- 
ages as are not yet reduced to a certainty in 
respect of amount, nothing more being estab- 
lished than the plaintiff’s right to recover. 

Damages are also either nominad or sub- 
stantial; theformer being triding in amount, 
and not awarded as coupensation for any 
injury, but merely in recognition of plain- 
tiff's right and its technical infraction by de- 
fendant; while the latter are considerable in 
amount, and intended as real compensation 
for a real injury 

Damages are either compensatory or vin- 
dictive; the former when nothing more is 
allowed than a just and exact equivalent for 
plaintiif’s loss or injury; the latter when a 
greater Sum is given than amounts to mare 
compensation, in order to punish the defend- 
ant for violence, outrage, or other circum- 
stances of aggravation attending the transac 
tion. Vindichive damages are also called 
“exemplary” or “punitive.” 


DAMAGES ULTRA. Additional dam- 
ages claimed by a plaintiff not satisfied with 
those paid into court by the defendant, 


DAMAIOUSE 


DAMATOUSE. Inold English law. 
Causing damage or loss, as distinguished 
from torcenousc, wrongful. Tritt. c. 61. 


DAME. In Englishlaw. The legal des- 
ignation of the wife of a knight or baronet. 


DAMWNA, Damages, both inclusive and 
exclusive of costs. 


DAMNATUS. In old English law. 
Condemned; prohibited by law; unlawful. 
Damnatus evitus, an unlawful connection. 


DAMNI INJURIA ACTIO. An ac- 
tion given by the civil law for the damage 
done by one who intentionally injured the 
slave or beast of another. Calvin, 


DAMNIFICATION. 
damage or loss. 


DAMNIFY. To cause damage or inju- 
rious loss to a person. 


DAMNOSA HAREDITAS. In the 
civillaw. A losing inheritance; an inherit- 
ance that was a charge, instead of a benefit. 
Dig. 50, 16, 119. 

The term has also been applied to that 
species of property of a bankrupt which, so 


That which causes 


far from being valuable, would be a charge | 


to the creditors; for example, a term of years 
where the rent would exceed the revenue. 
7 East, 842; 3 Camp. 340; 1 Esp. N. P. 284. 


DAMNUM. Lat. In the civil law. 
Damage; the loss or diminution of what is a 


man’s own, either by fraud, carelessness, or | Comm. 65; 4 BL. Comm. 411; 1 Steph. Comm, 


accident. 


In pleading and old English law. 
Damage; loss. 


DAMNUM ABSQUE INJURIA. A 
loss which does not give rise to an action of 
damages against the person causing it; as 
where a person blocks up the windows of a 
new house overlooking his land, or injures a 
person's trade by setting up an establishment 
of the same kind in 
Broom, Com. Law, 75. 


DAMNUM FATALE. Inthe civil law. 
Fatal damage; damage from fate; loss hap- 
pening from a cause beyond human control, 
(quod em fato continyit,) or an act of God, 
and for which hailees are not liable; such as 
shipwreck, lightning, and the like. Dig. 4, 
9, 8, 1; Story, Bailm. § 465. 

The civilians included in the phrase “damnum 
fataie” all those accidents which are summed up 
in the common-law expression, “Act of God or 
public enemies;” though, perhaps, it embraced 
some which would not now be admitted as occur- 
ring from an irresistible force. 8 Blackt, 535. 


the neighborhood. | 


317 


DANGERS OF THE RLVER 


DAMNUM INFECTUM. In Roman 
law. Damage not yet committed, but threat- 
ened or impending. A preventive interdict 
might be obtained to prevent such damage 
from happening; and it was treated aa a 
quasi-deliet, because of the imminence of 
the danger. 


DAMNUM REI AMISSZ. Inthe civil 
law. <A loss arising from a payment mada 
by a party in consequence of an error of law. 
Mackeld. Rom. Law, § 178. 


Damnum sine injuriaé esse potest. 
Lofft, 112. There may be damage or injury 
inflicted without any act of injustice. 


DAN. Anciently the better sort of men 
in England had this title; sothe Spanish Don. 
The old term of honor for men, as we now 
say Master or Mister. Wharton. 


DANEGELT, DANEGELD. A tribute 
of 1s. and afterwards of 2s. upon every hide 
of land through the realm, levied by the An- 
glo-Saxons, for maintaining such a number 
of forces as were thought sufficient to clear 
the British seas of Danish pirates, who great- 
ly annoyed their coasts. It continued a tax 
until the time of Stephen, and was one of 
the rights of the crown. Wharton. 


DANELAGE. A system of laws intro- 
duced by the Danes on their invasion and 
conquest of England, and which was prin- 
cipally maintained in some of the midland 
counties, and also on the eastern coast. 1 Bl. 


42, 

DANGERIA. In old English law. A 
money payment made by forest-tenants, that 
they might have liberty to plow and sow 
in time of pannage, or must feeding. 


DANGEROUS WEAPON. One dan- 
gerous to life; one by the use of which a fatal 
wound may probably or possibly be given. As 
the manner of use enters into the considera- 
tion as well as other circumstances, the ques- 
tion is for the jury. 


DANGERS OF THE RIVER. This 
phrase, as used in bills of lading, means only 
the natural accidents incident to river navi- 
gation, and does not embrace such as may be 
avoided by the exercise of that skill, judg- 
ment, or foresight which are demanded from 
persons in a particular occupation. 35 Mo. 
213. It includes dangers arising from un- 
known reefs which have suddenly formed in 
the channel, and are not discoverable by eare 
and skill. 17 Fed. Rep. 473, 


DANGERS OF THE ROAD ols DATION EN PAIEMENT 
DANGERS OF THE ROAD. This| DARREIN PRESENTMENT. L Fr. 


phrase, in a bill of lading, when it refers to 
inland transportation, means such dangers 
as are immefliately caused by roads, as the 
overturning of carriages In tough and pre- 
cipitous places. 7 Exch. 743. 


DANGERS OF THE SHA. The ex- 
pression “dangers of the sea” means those 
accidents peculiar to navigation that are of 
an extraordinary nature, or arise from irre- 
sistible force or overwhelming power, which 
cannot be guarded against by the ordinary 
exertions of human skill and prudence, 82 
J. Law, 320. 

The expression is equivocal. It is capable of be- 
ing interpreted to mean all dangers that arise 
upon the seas; or may be restricted to perils which 
arise directly and exclusively from the sea, or of 
which it is the efficient cause. In insurance poli- 
cies, it may have the wider meaning; but in char- 
ter-parties, an exception, introduced to limit the 
obligation of the charterer to return the vessel, of 
dangers of the seas, should be construed, since tha 
eharterer has possession, against him, and con- 
fined to the limited sense. Thus construed, it does 
not include destruction of the vessel by fire. 8 
Ware, 215, 2 Curt. 8. 


DAWNISM. The act of lending money on 
usury. 


DANO. In Spanish law. Damage; the 
deterioration, injury, or destruction which a 
man suffers with respect to his person or his 
property by the fault (culpa) of another. 
White, New Recop. b. 2, tit. 19, ¢.3, § 1. 


Dans et retinens, nihil dat. One who 
gives and yet retains does not give etfectual- 
ly. Tray. Lat. Max.129. Or, one who gives, 
yet retains, [possession,] gives nothing. 


DAPIFER. A steward either of a king 
or lord. Spelman. 


DARE. In the civil law. To transfer 
property. When this transfer is made in or- 


der to discharge a debt, it is datio solvendi | 


animo; when in order to receive an equiva- 
lent, to create an obligation, it is dafio con- 
trakendi animo,; lastly, when made donandt 
animo, trom mere liberality, it isa gilt, dono 
datio. 

DARE AD REMANENTIAM, Togive 
away in fee, or forever. 


DARRAIGN, To clear a legal account; 
to answer an accusation; to settle a contro- 
versy. 

DARREIN. L. Fr. Last. 


DARREIN CONTINUANCE. 
in practice. ‘The last continuance. 


ein, 


In old English law. The last presentment. 
See AssisE or DARREIN PRESENTMENT. 


DARREIN SHISIN. (L. Fr. Last seia- 
in.) A plea which lay in some cases for 
the tenant in-a writ of right. See 1 Bose. 
Real Act. 206. 


DATA. In old practica and conveyance 
ing. The date of a deed; the time when it 
was given; that is, executed, 

Grounds whereon to proceed; facts from 
which te draw a conclusion, 


DATE. The specification or mention, in 
a written instrument, of the time (day and 
year) when it was made. Also the time so 


; Specified. 


That part of a deed or writing which ex- 
presses the day of the month and year in 
which it was made or given. 2 Bl. Cowm. 
304; Tormlins. 


The primary signification of date is not time in 
the abstract, nor time talen absolutely, but time 
given or specified; time in seme way ascertained 
and fixed. When we speak of the date of a deed, 
we do not mean the time when it was actually ex- 
ecuted, but the time of its execution, as given or 
stated in the dead itself, The date of an item, or 
of a charge ina book-accouni, is not necessarily 
the time when the article charged was, in fact, 
furnished, but rather the time given or set down 
iu the account, in connection with such charga, 
And so the expression “the date of the last work 
done, or materials furnished, ” in a mechanic’s lien 
law, may be taken, in the absence of anything in 
the act indicating a different intention, to mean 
the time when such work was done or materials 
furnished, as specified in the plaintifi’s written 
claim. 32 N. J. Law, 518. 


DATE CERTAINE, In French law. 
A deed is said to have a date certaine (fixed 
date) when it has been subjected to the for- 


_mality of registration; after this formality 


has been complied with, the parties to the 
deed cannot by mutual consent change the 
date thereof. Arg. Fr. Mere. Law, 555. 


DATIO. In the civil law. A giving, or 
act of giving. Datio in solutum; a giving 
in payment; a species of accord and satisfac. 
tion. Called, in modern law, “dation.” 


DATION. In the civil law. 
giving of something. It is not exactly syn- 
onymous with “donation,” for the latter 
implies generosity or liberaiity in makinga 
gift, while dation may mean the giving of 
something to which the recipient is already 
entitled. 


DATION EN PAIEMENT. In French 
law. <A giving by the debtor and receipt by 


A gift; a 


DATION EN PAIEMENT 


the creditor of something in payment of a 
debt, instead of a sum of money. 

It is somewhat like the accord and satis- 
faction of the common law. 16 Toullier, 
no. 45; Poth. Vente, no. 601. 


DATIVE. A word derived from the Io- 
man law, signifying “appointed by public 
authority.” Thus, inScotland, an execntor- 
dative is an executor appointed by a court of 
justice, corresponding to an English admin- 
tstvator, Mozley & Whitley. 

In old English law. Inone’sgift; that 
may be given and disposed of at will and 
pleasure. 


DATUM. A first principle; a thing given; 
a date. 


DATUR DIGNIORI. 
more worthy. 2 Vent. 268. 


DAUGHTER. An immediate female de 
scendant, 


DAUGHTER-IN-LAW. The wife of 
one’s son. 


DAUPHIN. In French law. The title 
of the eldest sons of the kings of France, 
Disused since 1830. 


DAY. A period of time consisting ef 
twenty-four hours, and including the solar 
day and the night. Co. Litt. 135¢; Bract. 
fol. 264. 

The space of time which elapses between 
two successive midnights, 2Bl. Comm. 141. 

That portion of time during which the 
sun is above the horizon, (called, sometimes, 
a “solar” day,) and, in addition, that part of 
the morning or evening during which suf- 
ficient of his light is above for the features of 
aman to be reasonably discerned. 3 Inst. 633 
9 Mass. 154. 


It is given to the 


The term may also denote an artilicial | 


period of time, computed from one fixed 
point to another twenty-four hours later, 
withont any reference to the prevalence of 
light or darkness. 


‘the word is sometimes used, in jurisprudence, 
(n its astronomical sense of the space of time in 
which the earth makes one revolution upon its 
axis; or of the time between one midnight and 
the next; sometimes, in the popular sense, of the 
time between sunrise and suuset, and somotimes, 
ip a conventional sense, of those hours or that re- 
surring time which is by usage or law allotted to 
aud deemed sufficient for the discharge of some 
duty or performance of some business; as where 
one speaks of aday’s work, the whole of a busi- 
ness day, etc. Abbott, 


In practice and pleading. A particular 
time assigned or piven for the appearance of 


319 


DAYS OF GRACE 
parties in court, the return of writs, etc. See 
Days IN BANK, 

The whole of a term of court is considered as 
one day; and, by a legal fiction, the time between 
the submission and decision of a cause is also cou- 
sidered as but ous day; so that, although a party 


| toan action may die between the time of the de- 


cision in the cause by the supreme court of a state 
and the filing of the mandate of the supreme court 
of the United States reversing that decision, no 
change of parties in the state court is necessary 
before carrying the mandate into effect. 18 Ark 
653. 


DAY-BOOK. A tradesmnan’s account 
book; a book in which all the occurrences of 
the day are set down. It is usually a book 
of original entries. 


DAYERIA. <Adairy. Cowell. 


DAYLIGHT. That portion of time be- 
fore sunrise, and after sunset, which Is ac- 
counted part of the day, (as distinguished 
from night,) in defining the offense of burg- 
lary. 4 Bl. Comm. 224; Cro. Jac. 106. 


DAY-RULE, or DAY-WRIT. In En- 
glish law. A permission granted to a pris- 
oner to go out of prison, for the purpose of 
transacting his business, as to hear a case in 
which he is concerned at the assizes, ete. 
Abolished by 5 & 6 Vict. ¢. 22, § 12. 


DAYS IN BANK. (L. Lat. dies in 
banco.) Inpractice. Certain stated days in 
term appointed for the appearance of parties, 
the return of process, etc., originally peculiar 
to the court of common bench, or bench, 
(bank,) as it was anciently called. 3 BI. 
Comm. 277. 


DAYS OF GRACE. A number of days 
allowed, as a matter of favor or grace, toa 
person who has to perforin some act, or make 
some payment, after the time originally lim- 
ited for the purpose has elapsed. 

In old practice. Three days allowed to 
persons summoned in the English courts, be- 
yond the day named in the writ, to make 
their appearance; the last day being called 
the “quarto die post.” 8% Bl. Comm. 278. 

In mercantile law. A certain number of 
days (generally three) allowed to the maker 
or acceptor of a bill, draft, or note, in which 
to make payment, after the expiration of tha 
time expressed in the paper itself. Origi- 
nally these days were granted only as a mat- 
ter of grace or favor, but the allowance of 
them became an established custom of mer- 
chants, and was sanctioned by the courts, 
(and in some eases prescribed by statute, ) so 
that they are now denmandable as of right. 


DAYSMAN 


DAYSMAN. An arbitrator, umpire, or 
elected judge. Cowell. 


DAY-TIME. The time during which 
there is the light of day, as distinguished 
from night or night-time. That portion of 
the twenty-four hours during which a man’s 
person and countenance are distinguishable. 
9 Mass. 154; 1 Car. & P. 297. 

In law, this term is chiefly used in the 
definition of certain crimes, as to which it is 
material whether the act was committed by 
day or by night. 


DAY WERE. In old English law. A 
term applied to land, and signifying as much 
arable ground as could be plowed up in one 
day’s work. Cowell. 


DE. A Latin preposition, signifying of; 
by; from; out of; affecting; concerning; 
respecting. 


DE ACQUIRENDO RERUM DOMI- 
NIO. Of (about) acquiring the ownership 
of things. Dig. 41, 1; Bract. lib. 2, fol. 85. 


DE ADMENSURATIONE. Of admeas- 
urement. Thus, de admensuratione dotis 
was a writ for the admeasurement of dower, 
and de admensuratione pasture was a writ 
for the admeasurement of pasture. 


DE ADVISAMENTO CONSILII 
NOSTRI. L. Lat. With or by the advice 
of our council. A phrase used in the old 
writs of summons to parliament. Crabb, 
Eng. Law, 240. 


DE MQUITATEH. In equity, De jure 
stricto, nihil possum vendicare, de eguitate 
tamen, nitilo modo hoc obtinet; in strict 
law, I can claim nothing, but in equity this 
by no means obtains. Fleta, lib. 3, ce. 2, 
§ 10. 


DE ASTIMATO. In Romanlaw. One 
of the innominate contracts, and, in effect, a 
sule of land or goods at a price fixed, (a@séi- 
mato,) and guarantied by some third party, 
who undertook to find a purchaser. 


DE ATATE PROBANDA. For prov- 
ingage. <A writ which formerly lay to sum- 
mon a jury in order to determine the age of 
the heir of a tenant in capite who claimed 
his estate as being of full age. Fitzh. Nat. 
Brey. 257; Reg. Orig, 294. 


DE ALEATORIBUS, Abouf gamesters, 
The name of a title in the Pandects. Dig. 
11, 5. 


820 


DE ARBITRATIONE FACTA 


DEH ALLOCATIONE FACIENDA, 
Breve. Writ for making an allowance. An 
eld writ directed to the lord treasurer and 
barons of the exchequer, for allowing certain 
officers (as collectors of customs) in their ac- 
counts certain payments made by them. 
Reg. Orig. 192. 


DE ALTO ET BASSO. Of high and 
low. A phrase anciently used to denote tlie 
absolute submission of all differences to arbi- 
tration. Cowell. 


DE AMBITU. Lat. Concerning brib- 
ery. A phrase descriptive of the subject-mat- 
ter of several of the Roman laws; as the Lex 
Aufidia, the Lex Pompeia, the Lex Tullia, 
and others. Sce AMBITUS. 


DE AMPLIORI GRATIA. Of more 
abundant or especial grace. Townsh. Pl. 18, 


DE ANNO BISSEXTILI. Of the bis- 
sextile or leap year. The title of a statute 
pissed in the twenty-first year of Henry IIL, 
which in fact, however, is nothing more than 
a sort of writ or direction to the justices of 
the bench, instructing them how the ex- 
traordinary day in the leap year was to be 
reckoned in cases where persons had a day 
to appear at the distance of a year, as on the 
essoin de malo fecti, and the like. It was 
thereby directed that the additional day 
should, together with that which went be- 
fore, be reckoned only as one, and go, of 
course, Within the preceding year. 1 Reeve, 
Eng. Law, 266. 


DE ANNUA PENSIONE, Breve. Writ 
ofannual pension, Anancient writ by which 
the king, having a yearly pension due him 
out of an abbey or priory for any of his cliap- 
lains, demanded the same of the abbot or 
prior, for the person named in the writ. 
Reg. Orig. 265b, 307; Fitzh. Nat. Brey. 231 G. 


DE ANNUO REDITU. For a yearly 
rent. A writ to recoveran annuity, no mat- 
ter how payable, in goods or money. 2 Reeve, 
Eng. Law, 258. 


DE APOSTATA CAPIENDO, Breve. 
Writ for taking an apostate. A writ which 
anciently lay against one who, having en- 
tered and professed some order of religion, 
left it and wandered up and down the coun- 
try, contrary to the rules of his order, com- 
manding the sheriff to apprehend him and 
deliver him again to his abbot or prior. Reg. 
Orig. 71), 267; Fitzh. Nat. Brev. 233, 234. 


DE ARBITRATIONE FACTA, (Lat. 
Of arbitration had.) A writ formerly used 


DE ARRESTANDIS, ETC. 


when an action was brought for a cause 
which had been settled by arbitration. Wats. 
Arb. 256. 


DE AREESTANDIS BONIS NE DIS- 
SIPENTUR. An old writ which lay to 
seize goods in the hands ofa party during 
the pendency of @ suit, to prevent their be- 
ing made away with. Reg. Orig. 126. 


DE ARRESTANDO IPSUM QUI PE- 
CUNIAM RECEPIT, A writ which lay 


321 


for the arrest of one who had taken the king’s | 


money to serve in the war, and hid himself 
teescape going. Leg, Orig. 240. 


DE ARTE ET PARTE. Of art and 
part. A phrase in old Scotch law. 


DE ASPORTATIS RELIGIOSORUM. 
Concerning the property of religious persons 
carried away. The title of the statute 35 Ed- 
ward I. passed to check the abuses of cler- 
iea! possessions, one of which was the waste 
they suffered by being drained into foreign 
countries, 2 Reeve, Eng. Law, 157; 2 Inst. 
680. 


DE ASSISA PROROGANDA. (Lat. 
For proroguing assise.) A writ to put off an 
assise, issuing to the justices, where one of 
the parties is engaged in the service of the 
king. 


DE ATTORNATO RECIPIENDO. A 
writ which lay to the judges of a court, re- 
quiring them to receive and admit an attor- 
neyfora purty. Neg, Orig. 172; Fitzh. Nat, 
Brey. 156, 


DE AUDIENDO EV TERMINANDO, 
For hearing and determining; to hear and 
determine. The name of a writ, or rather 
cominission granted to certain justices to hear 
and determine cases of heinous misdemeanor, 
trespass, riotous breach of the peace, ete, 
Reg. Orig. 123, et seq.; Fitzh. Nat. Brev. 
110 B. See Over AND TERMINER, 


DE AVERIIS CAPTIS IN WITHHR« 
NAMIUM. Writ for taking cattle in with- 
ernam. A writ which lay where the sheriff 
Teturned to a pluries writ of replevin that 
the cattle or goods, etc., were eloined, etc.; 
by which be was commanded to take the 
eattle of the defendantin withernam, (or re- 
pris:l,) and detain them until he could re- 
plevy the other caltle. Reg. Ovig. $2; Fitzh. 
Nab. Brey. 75, E. F. See WirunRNnam. 


DE AVERIIS REPLEGIANDIS. 
wril to replevy beasts, 3 Bl. Comm. 149. 
AM.DICT.LAW—21 


A 


DE BONIS NON AMOVINDIS 


DE AVERIIS RETORNANDIS. For 
retuining the cattle. A term applied to 
pledges given in the old action of replevin. 
2 Reeve, Eng. Law, 177. 


DE BANCO. Of the bench. A term 
formerly applied in England to the jus- 
tices of the court of common pleas, or 
“bench,” as it was originally styled. 


DE BENE ESSE. Conditionally; pro- 
visionally; in anticipation of future need. A 
phrase applied to proceedings which are taken 
ec parte or provisivnally, and are allowed to 
stand as evel! done for the present, but which 
may be subject to future exeeption or chal- 
lenge, and must then stand or fall accoraing 
to their intrinsic merit and regniarity. 

Thus, “in certiin cases, the courts will allow ev- 
idence to be taken out of the regular course, in or- 
der to prevent the evidence being lost by the death 
or tha absence of the witness, This is called ‘tak- 
ing evidence de bene esse,’ and is looked upon asa 
temporary and conditional examination, to be used 
only incase the witness cannot afterwards be ex- 
amined in the suit in the regular way.” Hunt, 
Eq. 75; Haynes, Bq, 1838; Mitf. Eq. Pl. 52, 149. 

DE BIEN ET DE MAL, L. Fr. For 
good and evil. A phrase by which a party 
accused of a crime aneiently put himself up- 
on a jury, indicating his entire submission 
to their verdict. 


DK BIENS LE MOR. J, Fr. 
goods of the deceased. Dyer, 32. 


DE BIGAMIS. Concerning men twice 
married. The title of the statute 4 Edw. I. 
St. 3; so called from the Initial words of the 
fifth chapter. 2 Inst, 272; 2 Reeve, Eng. 
Law, 142. 


DE BONE MEMORIE. L. Fr. Of 
good memory; of sound mind. 2 Inst. 510. 


DE BONIS ASPORTATIS. For goods 
taken away; for taking away goods. The 
action of trespass for taking personal prop- 
erty is technically called “trespass de boris 
asportatis.” | Tidd, Pr. 5. 


DE BONTS NOW. An abbreviation of 
De bonis non administratis,(g.v.) 1 Strange, 
dt. ; 

DE BONTS NOW ADMINISTRATYIS. 
Of the goolls not administered. Whenanad- 
ministrator is appointed to succeed another, 
who has left the estate partially unsettled, he 
is said to be granted “administration de bonis 
non,” that is, of the goods not ulready ad- 
ministered. 


DH BONIS NON AMOVENDIS, 
Writ for not removing goods, A writ an- 


Of the 


DE BONIS PROPROS 32 


cleatly directed to the sheriffs of London, com- 
mianding them, in cases where a wril of er- 
ror was brought by a defendant against whom 
a judgment was reevvered, to see that his 
goods and chattels were safely kept without 
being removed, while Lhe error remained un- 
determined, so that execution might be had 
of them, ele. Reg, Orig. 1316; Termes de 
la Ley. 


DE BONIS PROPRIIS. Of his own 
goods. The technical name of a judgment 
against an administrator or executor to be 
satisfied from his own property, anc not from 
the estate of the deceased, as in cases where 
he las been guilty of a devestavit or of a 
fulse plea of plene administravit. 


DE BONIS TESTATORIS, or IN- 
TEHSTATI, Of the goods of the testator, or 
intestate. A term applied to a judgment 
awarding execution against the property of a 
testator or intestate, as distinguished from 
the individual property of his executor or ad- 
Ininistrator. 2 Archb. Pr. K. B. 148, 149. 


DE BONIS TESTATORIS AC Si. 
(Lat. From the goods of the testator, 77 he 
Aas any, and, if not, from those of the execu- 
tor.) A judgment rendered where an execu- 
tor falsely pleads any matter as a release, or, 
generally, in any case where he is to be 
charged in case his testator’s estate is insufii- 
cient. 1 Williams’ Saund. 3360; Bac. Abr. 
“Executor,” B, 3; 2 Archb. Pr, K. B. 148. 


DE BONO ET MALO. “For good and 
ill.” The Latin form of thelaw French phrase 
“De bien et de mal.” In ancient eriminal 
pleading, this was the expression with which 
the prisoner put himself upon a jury, indi- 
cating his absolute submission to their ver- 
dict. 

This was also the name of the special writ 
of jail delivery formerly in use in England, 
which issued for each particular prisoner, of 
course, It was superseded by the general 
eommission of jail delivery. 


DEH RONO GHSTU. For good behavior; 
for good abearance. 


DE CTERO. Henceforth. 


DE CALCETO REPARANDO. Writ 
for repairing a causeway. An old writ by 
which the sheriff was commanded to distrain 
the inhabitants of & place torepair and main- 
tain a causeway, ete. Reg. Orig. 154, 


DE CAPITALIBUS DOMINIS FEO- 
DY. Of the chief lords of the fee. 


2 DE CLAUSO FRACTO 


DE CAPITE MINUTIS. Ofthose who 
have lost their statws, or eivil eundition. 
Dig. 4,5, The name of a title in the Pan- 
dects. See Cariris DEMINUTIO. 


DE CARTIS REDDENDIS. (For re- 
storing charters.) A writ to secure the de- 
livery of charters or deeds; a writ of detinus, 
Reg. Orig, 1598, 


DE CATALLIS REDDENDIS. (Fer 
restering chattels.} A writ to secure the 
return specifically of chattels detained from 
the owner. Cowell. 


DE CAUTIONE ADMITTENDA, 
Writ to take caution or security. <A writ 
which aneciently lay against a bishop who 
held an excommunicated person in prison for 
his contempt, notwithstanding he lad of- 
fered sutticient security (tdoneam cautionem) 
to obey the commands of the church; com- 
mnanding him to take such security and re- 
lease the prisoner. Reg. Orig. 66; Fitzh, 
Nat. Brev. 63, C. 


DE CERTIFICANDO. A writ requir- 
ing a thing to be certified. A kind of cer- 
tioravtj. Reg. Orig. 151, 152. 


DE CERTIORANDO. A writ for cer- 
tifying. A writ directed to the sheriff, re- 
quiring him to certify to a particular fact. 
Reg. Orig. 24. 


DE CHAMPERTIA. Writ of cham- 
perty. A writ directed to the justices of the 
bench, commanding the enforcement of the 
statute of echampertors. Reg. Orig, 183; 
Fitzh. Nat. Brev. 172. 

DE CHAR ET DESANK. L. Fr. Of 
flesh and blood. Affaire rechat de char et de 
sank, Words use in claiming a person to 
be a villein, in tue time of Edward Il Y¥, 
&.P. 1 Bdw. Wh pa 


DH CHIMINO. A writ for the enforce 
ment of aright of way. Reg. Orig. 155, 


DE CIBARITS UTHNDIS. Of victuals 
fo be used. The title of a sumptuary stat- 
ute passed 10 Edw, LI. St. 3, to restrain the 
expense of entertainments. Barring. Ob, 
Sb, 240, 

DE CLAMIA ADMITTENDA IN 


ITINERE PER ATTORNATUM, Sea 
CLAMIA ADMITTENDA, ete. 


DE CLARO DIE. Bydayiight. Fleta, 
liv. 2, ©. 76, § 8 


DE CLAUSO FRACTO. Of close 
broken; of breach of close. See CLavsum 
FREGIT. 


DE CLERIWW ADMITTENDO 


BE CLERICO ADMITTENDO. 
ADMITTENDO CLERICO, 


Sea 


DE CLERICO CAPTO PER STATU- 
TUM MERCATORIUM DELIBERAN- 
BO. Writ for delivering aelerk arrested on 
ustatute merchant. A writ for the deliy- 
ery of a clerk out of prison, who had been 
taken and imprisoned upon the breach of a 
statute merchant. Reg. Orig. 1476. 


DE CLERICO CONVICTO DELIB- 
ERANDO. See CLleRice Convicro, ete. 


DE CLERICG INFRA YACROS OR- 
DINES CONSTITUTO NOW ELIGEN- 
DO IN OFFICIUM. See Crerico Ix- 
TRA SACROS, ete. 


DE CLERO. Concerning the clergy. 
The title of the statute 25 Edw. Lil. 8t. 3; 
containing a variety of provisions on the sub- 
ject of presentations, indictments of spiritual 
persons, and the like. 2 Reeve, Eng. Law, 
378. 

DE COMBUSTIONE DOMORUM. 
Of house burning. One of the kinds of ap- 
peal formerly in use in England, Bract. fol. 
1466; 2 Reeve, Eng. Law, 38. 


DH COMMUNI DIVIDUNDO. For 
dividing athing heldincommon. The name 
of an action given by the civil law. Mack- 
eld. Rom. Law, § 499. 


DE CORION DROIT. L. Fr. Of com- 
mon right; that is, bythe common law. Co. 
Litt, 142a. 


DE COMPUTO. Writ of account. A 
writ commanding a defendant to render a 
reasonable account to the plaintiff, or show 
cause to the contrary. Reg. Orig. 135-155; 
Fitzh. Nat. Brev. 117, E. The foundation 
of the modern action of account. 


DE CONCILIO CURIA. By the ad- 
vies (or direction) of the court. 


DE CONFLICTU LEGUM. Concern- 
ing the conflict of laws. The title of several 
works written on that subject. 2 Kent, 
Comm, 455. 


DE CONJUNCTIM FEHOFFATIS. 
Concerning persona jointly enfeoffed, or 
seised. The title of the statute 34 Edw. L, 
which was passed to prevent the delay oc- 
easioned by tenants in novel disseisin, and 
other writs, pleading that some one else was 
scised jointly with them. 2 Reeve, Eng. 
Law, 243. 


323 


DE CURIA CLAUDENDA 


DE CONSANGUIEWEO, and DA CON- 
SANGUINITATEH. Writs of cosinage, 


(q. 0.) 


DE CONSILIO. In old criminal law. 
Of counsel; concerning counsel or advice to 
commitacrime. Fleta, lib. 1, ¢. 31, § 8. 


DE CONSILIO CURIA. By the ad- 
vice or direetion of the court. Bract. fel. 
84.5b. 


DE CONTINUANDO ASSISAM. 
Writ to continue an assise. Reg. Orig. 2176, 


DE CONTUMACEH CAPIENDO, Writ 
for taking a contumacious person. <A writ 
which issues out of the English cour’ of 
chancery, in cases where a person has been 
pronounced by an ecclesiastical court to be 
contumacious,andincontempt. Shelf. Mar. 
& Div. 494-496, and notes. It is a commit- 
ment for contempt. Id. 


DE COPIA LIBELLI DELIBERAN-: 
DA. Writ for delivering the copy of a libel. 
An ancient writ directed to the judge of a 
spiritual court, commanding him to deliver 
to a defendant a copy of the libel fled against 
him in such court. Reg. Orig. 58. The writ 
in the register is directed to the Dean of 
the Arches, and his commissary. Id. 


DE CORONATORE ELIGENDO. 
Writ for electing a coroner. <A writ issied 
to the sheriff in England, commanding him 
to proceed to the election of a coroner, which 
is done in full county court, the freeholders 
being the electors. Sewell, Sheriffs, 372. 


DE CORONATORE EXONERANDO. 
Writ for discharging or removing a coroner. 
A writ by which 1 coroner in Eogiand may 
be removed from oflice for some cause there- 
in assigned. Fitzh. Nat. Brey. 163, 164; 1] 
Bl. Comm. 548. 


DE CORPORE COMETATUS, From 
the body of the county at large, as distin- 
guished from a particular neighborhood, (de 
vicineto.) 3 Bl. Comm. 360, 


DE CORRODIO HABENDO. Writ 
for having a corody. <A writ to exact a cor- 
ody from a religious house. Reg. Orig. 264; 
Fitzh. Nat. Brey. 2380. See Coropy. 


DE CURIA CLAUDENDA. An cbhso- 
lete writ, to require a defendant to fence in 
his court or land about his house, where it 
was left open to the injury of his neighbor’s 
freehold. 1 Crabb, Real Prop, 314; 6 Mass, 


| 90. 


3 


DE CURSU 


DBE CURSU. Of course. The usual, 
necessary, and formal proceedings In an ac- 
tion are said to be de ewrsu; as distinguished 
from sitmmnary proceedings, or such a8 are 
incidenta! and may be taken on stimmons or 
motion. Writ de cums are such as are issued 
of course, as distinguished from prerogative 
writs. 


DE CUSTODE ADMITTENDO. Writ 
for admitting a puardian. Keg. Orig. 936, 
198. 


DE CUSTODE AMOVENDO. Writ 
for removing a guardian. Reg. Orig. 198. 


DE CUSTODIA TERRE ET HARE- 
DIS, Breve. L. Lat. Writ of ward, or 
writ of right of ward. A writ which lay for 
a guardian in knight's serviee or in socage, 
to recover the possession and custody of the 
infant, or the wardship of the land and heir. 
Reg. Orig. 161); Fitzh. Nat. Brev. 139, B; 
3 Bl. Comm. 141. 


DE DEBITO. A writ of debt. 
Orig. 139. 


DE DEBSITORE IN 
CANDO. In Roman law. “Of cutting a 
debtor in pieces.” This was the numeof a 
law contained in the Twelve Tables, the 
meaning of which has occasioned much con- 
troversy. Some commentators have conelud- 
ed that it was literally the privilege of the 
ereditors of an insolvent debtor (ali other 
means failing) to cut his body into pieces 
and distribute it among them. Others con- 
tend that the language of this law must be 
taken figuratively, denoting a cutting up 
and apportionment of the debtor's estate, 

The latter view has been adopted by Montes- 
quieu, Bynkershoeck, Heineccius, and Taylor. (Ks- 
prit des Lois, liv. 29, ¢.2; Bynk. Obs. Jnr. Rom. L 
1, c 1; Heinece. Aut. Rom. tib. 3, tit. 30,4; Tayl. 
Comm. in Leg. Decomy.) The literal meaning, on 
the other hand, is advocated by Aulus Gellius and 
other writers of antiquity, and receives support 
from an expression (semoto omni? eriteiatu) in 
the Roman code itself. (Aul Gel. Noctes Attics, 
lid. 20, c. 1; Code, 7, 7, 8.) This is also the opin- 
ion of Gibbon, Gravina, Pothier, Hugo, and Nieh- 
bubr. (8 Gib. Rom. Emp., Am. Ed., p. 18%; Gray, 
de Jur. Nat. Gent. eb XII. Tab. § 72; Poth. Introd. 
Pand.; Hugo, Hist, du Droit Rom. tom. i, p. 233, 
§ 149; 2 Niehb. Hist. Rom. p. 697; 1 Kent, Comm. 
523, note.) Burrill 


DE DECHEPTIONE. A writ of deceit 
wiich lay against one who acted in the name 


of another whereby the latter was damnified 
and deceived. Reg. Orig. 112. 


DE DECNERANDA PRO RATA 
PORTIONIS. A writ that lay where one 


Reg. 


PARTES SE- 


24 DE EJECTIONE FIRMA 

was distrained for rent that ought to be paid 
by others proportionabiy with him. Fitzh, 
Nat. Brey. 234; Termes dela Ley. 


DH DIE IN DIEM. From day to day. 
Bract. fol. 2058, 


DE DIVERSIS REGULIS JURIS 
ANTIQUI, Of divers rules of the ancient 
law. A celebrated title of the Digests, and 
the last in that collection. It consists of 
two bundred and eleven rules or maxims. 
Dig. 50, 1%. 


DE DOLO MALO. 
fraud. Dig. 4, 3. 
Mato, 


DE DOMO REPARANDA. A writ 
which Jay for one tenant in common to com- 
pel his co-tenant to contribute towards the 
repair of the common property. 


DE DONIS. Concerning gifts, (or more 
fully, de danis conditionalibus, concerning 
conditional gifts.) The name of a celebrated 
English statute, passed in the thirteenth 
year of Edw. 1., and constituting the first 
ebapter of the statute of Wesim, 2, by virtue 
of which estates in fee-simple conditional 
{formerly known as “dona conditionalia”) 
were converted into estales in fee-tail, and 
which, by rendering such estates inalienable, 
introduced perpetuities, and so strengthened 
the power of the nobles. See 2 Bl Comm. 
Ite. 


DE DOTH ASSIGNANDA. Writ for 
assigning dower, A writ which lay for the 
widow of a tenant in captle, commanding 
the king’s escheator to cause her dower ta 
be assigned to her. leg. Orig. 297; Fitzh, 
Nat. Brev, 263, C. 


DE DOTH UNDE NIHIL HABET, 
A writ of dower which lay for a widow 
where no part of her dower had been as- 
signed to her, It is now much disused; but 
a form closely resembling it is still sometimes 
used in the United States. 4 Kent, Comm. 
| 63; Stearns, Real Act. 302; 1 Washb. Real 
Prop. 230, 

DE HJECTIONE CUSTCODIA. A 
writ which lay for a guardian who had been 
forcibly ejected from his wardship. Reg, 
Orig. 162. 

DE HJECTIONE FIRMA, A writ 
which lay at the suit of the tenant for years 
against the lessor, reversioner, remainder- 
man, or stranger who had himself deprived 
the fenant of the occupation of the land dur- 
ing his term. 3 Bl. Comm. 199. 


OF or founded upon 
See AcTIO DE DoLo 


P 


DE EJECTIONE FIRMA 


By agradual extension of the scope of this 
form of action its object was made to include 
not only damages for the unlawful detainer, 
but ulso the possession for the remainder of 
the term, and eventually the possession of 
land generally. And, as it turned on the 
right of possession, this invelyed a determi- 
nation of the right of property, or the title, 
and thus arose the modern action of eject- 
ment. 


DE ESCASTA. Writ ofescheat. <A writ 
which a lord had, where his tenant died with- 
out heir, to recover the land. Reg. Orig. 
1646; Fitzh. Nat. Brev. 143, 144, E. 


DE ESCAMEBIO MONET. A writ 
of exchange of money. An ancient writ to 
authorize a merchant to make a Dill of ex- 
change, (literas cambitorias facere.) Reg. 
Orig. 194, 


DE ESSH IN PEREGRINATIONE. 
Of being on ajourney. A species of essoin. 
1 Reeve, Eng. Law, 119. 


DE ESSENDO QUIETUM DE TO- 
LONIO. A writ which lay for those who 
were by privilege tree from the payment of 
toll, on their being molested therein. Fitzh. 
Nat. Brev. 226; Reg. Orig. 2580. 


DE ESSONIO DE MALO LECTI. A 
writ which issued upon an essoin of malum 
lecté being cast, to examine whether the party 
was in fact sick or not. Reg, Orig. 8b. 


DE ESTOVERIIS HABENDIS. Writ 
for having es{overs. 
wife divorced @ mensa et thuro, to recover 
her alimony or estovers. 1 Bi. Comm. 441; 
1 Lev. 6. 


DE ESTREPAMENTO. A writ which 
lay to prevent or stay waste by a tenant, 
during the pendency of a suit against him to 
recover the lands. Reg, Orig. 708+ Fitzh. 
Nat. Brev. 60. 


DE EU ET TRENE. L. Fr. Of water 
anid whip of three cords. A term applied to 
a neife, that is, a bond woman or female vil- 
lein, as employed in servile work, and sub- 
ject to corporal punishment. Co. Litt, 25d. 


DE EVE ET DE THKEVE. A law 
French phrase, equivalent to the Latin de avo 
et de tritavo, descriptive of the ancestral 
rights of lords in their villeins. Literally, 
“from grundfather and from great-grandfa- 
ther’s great-grandfather.” It occurs in the 
Year Books. 


825 


A writ which lay fora | 


DE FACTO 


DE EXCOMMUNICATO CAPIEN- 
DO. A writ commanding the sheriff to ar- 
rest one who was excommunicated, and im- 
prison him till he should Leeome reconciled 
to the church. 3 BI. Comm. 102. 


DE EXCOMMUNICATO DETLIBE- 
RANDO. A writ to deliver an excom- 
municated person, who has made satisfaction 
to the church, from prison. 3 Bl. Comm. 
102. 


DE EXCOMMUNICATO RECAPI- 
ENDO. Writ for retaking an excommuni- 
cated person, where he had been liberated 
from prison without making satisfaction to 
the church, or giving security for that pur- 
pose. Reg. Orig. 67. 


DE EXCUSATIONIBUS. “Concerning 
excuses.” This is the title of book 27 of the 
Pandects, (in the Corpus Juris Civilis.) It 
treuls of the circumstances which excuse one 
from filling the office of tutor or curator. 
The bulk of the extracts are from Modestinus., 


DE EXECUTIONE FACIENDA IN 
WITHERNAMIUM. Writ for making 
executionin withernam. Reg. Orig. 82). A 
species of cupias in withernam. 


DE EXECUTIONE JUDICII. <A writ 
directed to a sheriff or bailiff, commanding 
him to do execution upon a judgment. Reg. 
Orig. 18; Fitzh. Nat. Brey. 20, 


DE EXEMPLIFICATIONE. Writ of 
exemplification. A writ granted for the ex- 
emplification of an original. Reg. Orig. 
2900. 


DE EXONERATIONE SECTA. Writ 
for exoneration of suit. A writ that lay for 
the king’s ward to be discharged of all suit 
to the county court, hundred, leet, or court- 
baron, during the time of his wardship. 
Fitzh. Nat. Brey. 158; New Nat. Brev. 352. 


Di EXPENSIS CIVIUM ET BUR- 
GENSIUM. An obsolete writ addressed to 
the sheriff to levy the expenses of every cil- 
izen and burgess of parliament. 4 Inst. 46. 


DE EXPENSIS MILITUM LEVAN- 
| DIS. Writ for levying the expenses of 
| knights. A writ directed to the sheriff for 
| levying the allowance for knights of the 
shire in parliament, Reg. Orig, 1916, 192. 


DE FACTO. In fact, im deed, actually. 
This phrase is used to characterize an oflicer, 
a government, a past action, or a state of af- 
fairs which exists actually and must be ac- 
| cepted for all practical purposes, but which 


fi 


DE FACTO 


is illegal or illegitimate. In this sense it is 
the contrary of de jure, which means right- 
ful, legitimate, Just, or constitutional. Thus, 
an officer, king, or government de faclo is 
ong who is in actual possession of the office 
or supreme power, buf by usurpation, or 
without respect to lawful title; while an of- 
ficer, king, or governor de jure is one who hus 
just claim and rightful title to the office or 
power, but who has never bad plenary pos- 
session of the same, or is not now in actual 
possession. (4 B)].Comm. 77, 78.) Soa wife 
de facto is one whose marriage is voidable by 
decree, as distinguished from a wife de jure, 
or lawful wife. (4 Kent, Comm. 36.) (As 
tothe distinction between governments de 
Sacto and de jure, 8ee GOVERNMENT. As to 
officers de facto, see that title.) 

But the term is also frequently used inde- 
pendently of any distinction from de jure; 
thus a blockade de facto is a blockade which 
ig actually maintained, as distinguished from 
a mere paper blockade. 

In old English law. De facto means 
respecting or concerning the principal act of 
a murder, which was technically denom- 
inated factum. See Fleta, lib, 1, c. 27, 
§ 18. 


DE FACTO CONTRACT. One which 
has purported to pass the property from the 
owner to another. 74 N. ¥. 575; L. R. 3 
App. Cas. 459. 


DEH FAIRE ECHELLE. In French 
law. <A clause commonly inserted in policies 
of marine insurance, equivalent to a license 
to touch and trade at intermediate ports. 14 
Wend. 491. 


DE FALSO JUDICIO. Writ of false 
judgment. Reg. Orig. 15; Fitzh. Nat Brev. 
18. See Faust JUDGMENT. 


DE FALSO MONETA. Of false money. 
The title of the statute 27 Edw. I. ordaining 
that persons importing certain coins, called 
“nollards,” and “crokards,” shonld forfeit 
their lives and goods, and everything they 
could forfeit. 2 Reeve, Ming. Law, 228, 229. 


De fide et officio judicis non recipitur 
queestio, sed de scientia, sive sit error 
juris, sive facti. Concerning the fidelity and 
official conduct of a judge, no question is 
[ will be] entertained; but [only] concerning 
his knowledge, whether the error [committed | 
be of law or of fact. Buc. Max. 68, reg. 17. 
The bona fides and honesty of purpose ofa 
Judge cannot be questioned, but his de- 
cision may be impugned for error cither of 


326 


DE GRATIA 


laworfaet. Broom, Max.85. Thelaw doth 
50 much respect the certainty of judgments, 
and the credit and authority of judges, that 
it will not permit any error to be assigned 
which impeacheth them in theit trust and 
office, and in willful abuse of the same; but 
only in ignorance and mistaking either of 
the law, or of the case and matter of fact. 
Bac. Max. ubi supra. Thus, it cannot he 
assigned for error that a judge did that 
which he ought not to do; as that he entered 
a verdict for the plaintiff, where the jury 
gave it for thedefendant. Fitzh. Nat. Brey. 
20,21; Bac. Max. ubi supra; Hardr. 127, arg, 


DE FIDEI LASIONE. Of breach of 
faith or fidelity. 4 Reeve, Eng. Law, 99. 


DE FINE FORCE. L. Fr. Of neces- 
sity; of pure necessity. See FINE ForcE. 


DE FINE NON CAPIENDO PRO 
PULCHRE PLACITANDO. A writ pro- 
hibiting the taking of fines for beau pleader. 
Reg. Orig. 179. 


DE FINE PRO REDISSEISINA CA- 
PIENDO. A writ which lay for the release 
of one imprisoned for a re-disseisin, on pay- 
ment of a reasonable fine. Pog. Orig. 2226. 


DE FINIBUS LEVATIS. Concerning 
fines levied. The title of the statute 27 Edw. 
I., requiring fines thereafter to be levied, to 
be read openly and solemnly in court. 2 
Inst. 521, 


DE FORISFACTURA MARITAGII,. 
Writ of forfeiture of marriage. Reg. Orig. 
163, 164. 


DE FRANGENTIBUS PRISONAM. 
Concerning those that break prison. The 
title of the statute 1 Edw. II., ordaining 
that none from thenceforth who broke prison 
should have judgment of life or limb for 
breaking prison only, unless the cause for 
which he was taken and imprisoned required 
such a judgment if he was lawfully convict- 
ed thereof. 2 Reeve, Eng. Law, 290; 2 Inst. 
589. 

DE FURTO. Oftheft. Oneof the kinds 


of criminal appeal formerly in use in Ing- 
land. 2 Reeve, Eng. Law, 40. 


DE GHSTU ET FAMA. Of behavior 
and reputation. An old writ which lay in 
cases where a person’s conduct and reputa- 
tion were impeached. 


DE GRATIA. Of grace or favor, by fa- 
yor. De speciali gratia, of special grace or 
favor. 


DE GRATIA SPECIALI, ETC. 


De gratia speciali certa scientia et 
mero motu, talis clausula non valet in 
his in quibus presumitur principem 
esse ienorantem. 1 Coke, 53. The clause 
“of our special grace, certain knowledge, and 
mero motion,” is of no avail in those things 
in which it is presumed that the prince was 
ignorant. 


De grossis arboribus decimse non da- 
buntur sed de sylvia cedua decime 
dabuntur. 2 Rolle, 123. Of whole trees, 
tithes are not given; but of wood cut to be 
used, tithes are given. 


DE HHREDE DELIBERANDO ILLI 
QUI HAPEHI CUSTODIAM TERR. 
Writ for delivering an heir to him who has 
wardship of the land. A writ directed to 
the sheriff, to require one that had the body 
of him that was ward to another to deliver 
him to the person whose ward he was by 
reason of his land. Reg. Orig. 161. 


DE HZREDE RAPTO ET ADBDUC- 
TO. Writ concerning an heir ravished and 
carried away. A writ which anciently lay 
for a lord who, having by right the wardship 
of his tenant under age, could not obtain his 
body, the same being carried away by an- 
other person. Reg. Orig. 168; Old Nat. 
Brey. 93. 


DE H FERETICO COMBURENDO. | 


(Lat. For burninga heretic.) A writ which 
lay where a heretic had been convicted of 
heresy, had abjured, and had relapsed into 
heresy. It issaid to be very ancient. Fitzh. 
Nat. Brev. 269; 4 Bl. Comm. 46. 


DE HOMAGIO RESPECTUANDO. 
A writ for respiting or postponing homage. 
Fitzh. Nat. Brey. 269, A. 


DE HOMINE CAPTO IN WITHER- 
NAM. (Lat. For taking a man in wither- 
nam.) A writ to take a man who had car- 
ried away a bondman or bondwoman into 
another country beyond the reach of a writ 
of replevin. 


DE HOMINE REPLEGIANDO. (Lat. 
For replevying a man.) A writ which lies 
to replevy a man out of prison, or out of the 
custody of a private person, upon giving se- 
curity to the sheriff that the man shail be 


forthcoming to answer any charge against | 


him. Fitzh. Nat. Brev. 66; 3 Bl. Comm. 
129. 

This writ has been superseded almost 
wholly, in modern practice, by that of habeas 


corpus; but it is still used, in some of the 


827 


DE INJURIA 
states, in anamended and altered form. See 
1 Kent, Comm. 404n,; 34 Me. 136. 


DE IDENTITATE NOMINIS. A 
writ which lay for one arrested in a personal 
action and committed to prison under a mis- 
take as to his identity, the proper defendant 
bearing the same name. Reg. Orig. 194. 


DE IDIOTA INQUIRENDO. Anold 
common-law writ, long obsolete, to inquire 
whether a man bean idiot or not, 2 Steph. 
Comm. 509. 


DE IIS QUI PONENDI SUNT IN 
ASSISEIS. Of those who are to be put on 
assises. The title of a statute passed 21 
Edw, I., defining the qualifications of jurors. 
Crabb, Eng. Law, 167, 189; 2 Reeve, Eng. 
Law, 184. 


DE INCREMENTO. Of incresse; in 
addition. Costs de incremento, or costs of 
increase, are the costs adjudged by the court 
in civil actions, in addition to the damages 
and nominal costs found by the jury. Gilb. 
Com, Pl. 260. 


DE INFIRMITATE,. Ofinfirmity. The 
principal essoin in the time of Glanville; 
alterwaris called “demalo.” 1 Reeve, Eng. 
Law, 115. See De Maro; Essorn. 


DE INGRESSU, 
Orig. 2276, et seq. 


Awritofentry. Reg. 


DE INJURIA. Of [his own] wrong, 
In the technical language of pleading, a 
replication de injuria is one that may be 
made in an action of tort where the defend- 
ant has admitted the acts complained of, but 
alleges, in his plea, certain new matter by 
way of justification or excuse; by this repli- 
ealion the plaintiff avers that the defendant 
committed the grievances in question “of his 
own wrong, and without any such cause,” or 
motive or excuse, as that alleged in the plea, 
(de injuria sua propria absgue tali causa,) 
or, admitting part of the matter pleaded, 
“without the rest of the cause” allezed, 
(absque residuo cause.) 

In form it is a species of traverse, and it is 
frequently used when the pleading of the de- 
fendant, in answer to which it is directed, 
consists merely of matter of excuse of the 
alleged trespass, grievance, breach of con- 
tract, or other cause of action. Its com- 
prehensive character in putting in issue all 
the material facts of the defendant’s plea has 
also obtained for it the title of the general 
replication. Hoithouse, 


H 


K 


DE [NOFFICIOSO TESTAMENTO 328 


DE INOFFICIOSO THSTAMENTO. 
Concerning an inoflicious or undutiful will. 
A title of the civillaw. Inst. 2, 18. 


DE INTEGRO. 
As it was before. 


DE INTRUSIONE. A writ of intru- 
sion; wherea stranger entered after the death 
of the tenant, tothe injury of the reversioner. 
Reg. Orig. 2335. 


Anew; a second time. 


DE JACTURA EVITANDA. For 


avoiding a loss. A phrase applicd to a de- 
fendant, as de lucro eapiando is toa plaintiff. 
1 Litt. (Ky.) 51. 


DE JUDAISMO, STATUTUM. The 
name of a statute passed in the reign of Ed- 
ward I., which enacted severe and arbitrary 
penalties against the Jews. 


DE JUDICATO SOLVENDO. For 
payment of the amount adjudged. A term 
applied in the Scotch law to bail to the ac- 
tion, or special bail. 


DE JUDICIIS. Of judicial proceedings. 


The title of the second part of the Digests or | 


Pandects, including the fifth, sixth, seventh, 
eighth, ninth, tenth, and eleventh books. 
See Dig. prowm. § 3. 


DE JUDICIO SISTI. For appearing 
in court. A term applied in the Scotch and 
admiralty law, to bail for a defendant’s ap- 
pearance. 


DE JURE. Ofright; legitimate; lawful; 
by right and just title. In this sense it is 
the contrary of de fucto, (which see.) It may 
also be contrasted with @e gratin, in which 
case it means “as a matter of right,” as ce 
gratia means “by grace or favor.” Again 
it may be contrasted with de @quttate; here 
meaning “by law,” as the latter means “by 
equity.” Seo GOVERNMENT. 


De jure decimarum, originem ducens 
de jure patronatus, tune coguitio spec- 
tat at legem civilem, i. e., communem. 
Godb. 63. With regard tothe right of tithes, 
deducing its origin from the right of the pa- 
tron, then the cognizance of them belongs to 
the civil law; that is, the common law. 


DE LA PLUIS BEALE, or BELLE, 
L. Fr. Of the most fair. A term applied to 
a species of dower, which wasassigned ont of 
the fairest of the husband’s tenements. Litt. 
$48. This was abolished with the military 
tenures, 2 Bl, Comm. 182; 1 Steph. Comm. 
Za. 


DE MALO 


DE LATERE. From the side; on the 
side; collaterally; of collaterals. Cod. 5, 5, 6. 


DE LEGATIS ET FIDE COMMIS5- 
SIS. Of legacies and trusts. The name of 
a title of the Pandects. Dig. 30. 


DE LEPROSO AMOVENDO. Writ 
for removing a leper. A writ to remove 4 
leper who thrust himself into the company 
of his neighbors in any parish, in public or 
private piaces, to their annoyance. Keg, 
Orig. 267; Fitzh. Nat. Brey. 234, E; New 
Nat. Brev. 521. 


DE LIBERA FALDA. Writ of free 
fold. A species of quod permitiat. Reg. 
Orig. 155. 


DE LIBERA PISCARIA. Writ of free 
fishery. A species of guod permitiat. Reg, 
Orig. 155. 


DE LIBERO PASSAGIO, Writof free 
passage. A species of quod permitiat. Reg, 
Orig. 155. 


DE LIBERTATE PROBANDA. Writ 
for proving liberty. A writ which lay for 
such as, being demandeil for villeins or niefs, 
offered to prove themselves free. Reg. Orig. 
870; Fitzh. Nat. Brey. 77, F. 


DE LIBERTATIBUS ALLOCANDIS. 
A writ of various forms, to enable a citizen 
to recover the liberties to which he was en- 
titled. Fitzh. Nat. Brey. 229; Reg. Orig. 
262. 


DE LICENTIA TRANSFRETANDI. 
Writ of permission to cross the sea. An old 
writ directed to the wardens of the port of 
Dover, or other seaport in England, com- 
manding them to permit the persons named 
in the writ to cross the sea from such port, 
on certain conditions. Reg. Orig. 193d. 1 


DE LUNATICO INQUIRENDO. 
The name of a writ directed to the sheriff, 
directing him to inquire by good and lawful 
men whether the party charged is a lunatic 
or not, 


DE MAGWA ASSISA ELIGENDA, 
A writ by which the prand assise was chosen | 
and summoned. Reg, Orig. 8; Fitzh. Nat. | 
Brey. 4. 


De majori et minori non variant jura. 
Concerning greater and less laws do not vary, 
2 Vern. 552. 


DE MALO. Of illness. This phrase 
was frequently used to designate several spe- 
cies of essoin, (g. 2.,) such as de malo lecti, 


DE MANUCAPTIONE 


of iiness in bed; de malo ventendi, of illness | 
for misfortune) in coming te the place where 
the court sat; de malo ville, of illness in the 
town where the court sat. 


DE MANUCAPTIONE. Writ of man- 
ucaption, or mainprise. A writ which lay 
for one who, being taken and imprisoned on 
a charge of felony, had offered bail, which | 
had been refused; requiring the sheriff to 
discharge him on his finding suilicient main- | 
pernors or bail. Reg. Orig. 2686; Fitzh. 
Nat. Brev. 249, G. 


DE MANUTENENDO, Writ of main- 


tenanee. <A writ which lay against a person 
for the offense of maintenance. Reg. Orig. 
189, 182d. 


DE MEDIETATE LINGUA. Of the 
half tongue; half of one tongue and half of 
another. This phrase describes that species | 
of jury which, at common law, was allowed | 
in both civil and criminal cases where one of | 
the parties was an alien, not speaking or un- 
derstanding English. It was composed of 
six English denizens or natives and six of 
i the alien’s own countrymen, 


DE MEDIO. A writ in the nature of a | 
writ of right, which lay where upon a subin- 
fendation the mesne (or middle) lord suffered 
his under-tenant or tenant paravriil to be 
distrained upon by the lord paramount for | 
the rent due him from the mesne lord. Booth, | 
Real Act. 136. 


DE MELIORIBUS DAMNIS. Of or 
for the better damages. .A term used in 
practices to denote the election by a plaintiff 
aguinst which of several defendants (where 
the damages have been assessed separately) 
he will take judgment. 1 Arch. Pr. K. B. | 
219; 8 Cow. 111, 


DE MERCATORIBUS. “Concerning 
merchants.” The name of a statute passed 
in theeleventh year of Edw. I., (1233,) more | 
commonly called the “Statute of Acton Bur- 
nel,” authorizing the recognizance by statute 
merchant. See 2 Reeve, Eng. Law, 160- 
162; 2 Bl. Comm. 161, 


De minimis non curat lex. The law 
does not care for, or take notice of, very small 
or trifling matters. The law does not con- 
cern itself about trifles. Cro. Eliz. 353. 
Thus, error in calculation of a fractional part 
of a penny will not be regarded. Hob, 88. 
So, the law will not, in general, notice the 
fraction of a day. Broom, Max. 142, 


829 


DE NON DECIMANDO 


DE MINIS. Writ of threats. A writ 
which lay where a person was threatened 
with personal violence, or the destruction of 
his property, to compel the offender to keep 
the peace. Reg. Orig. 886, 89; Fitzh. Nat. 
Brev. 79, G, 80. 


DE MITTENDO TENOREM RE- 
CORDI. A writ to send the tenor of a rec- 
ord, or to exemplify it under the great seal. 
Reg. Orig, 2200. 


DE MODERATA MISERICORDIA 
CAPIENDA. Writ for taking a moderate 
amercoment. <A writ, founded on Magna 
Charta, (ec. 14,) whieh lay for one who was 
excessively amerced in a court not of record, 


| directed to the lord of the court, or his bailiff, 


commanding him to take a moderate ameree- 
ment of the party. Reg. Orig. 868; Fitzh. 


| Nat. Brev. 75, 76. 


DE MODO DECIMANDI. Of a madtus 
of tithing. A term applied in English ec- 
clesiastical law to a prescription to have a 
special manner of tithing. 2 Bl. Comm. 29; 
3 Steph. Comm. 130. 


De molendino de novo erecto non jacet 
prohibitio. Cro. Jac. 429. A prohibition 
lies not against a newly-erected mill. 


De morte hominis nulla est cunctatio 
longa. Where the death of a human being 
is concerned, [in a matter of life and death, ] 


no delay is [considered] long. Co. Litt. 134. 


DE NATIVO HABENDO. A writ 
which lay for a lord directed to the sheriff, 
commanding him to apprehend a fugitive 
villein, and restore him, with all! his chattels, 
to the lord. Reg. Orig. 87; Fitzh. Nat. Brey. 
fue 


De nomine proprio non est curandum 
eum in substantia non erretur; quia 
nominga mutabilia sunt, res autem im- 
mobiles. 6 Coke, 66. As to the proper name, 
it is not to be regarded where it errs not in 
substance, because names are changeable, 
but things immutable, 


De non apparentibus, et non existenti- 
bus, eadem est ratio. 5 Coke, 6. <As to 
things not apparent, and those not existing, 
the rule is the same, 


DE NON DECIMANDO. Of not pay- 
ing tithes. A term applied in English ec. 
clesiastical law to a prescription or claim to 
be entirely discharged of tithes, and to pay 
no compensation in lieu of them. 2 BI. 
Comm. 31. 


fl 


DE NON PROCEDENDO, ETC. 


DE NON PROCEDENDO AD AS- 
SISAM. A writ forbidding the justices from 
holding an assise In a particular case. Reg. 
Orig. 221. 


DE NON RESIDENTIA CLERICI 
REGIS. An ancient writ where a parson 


330 


was employed in the royal service, etc., to | 


excuse and discharge him of non-residence. 
2 Inst. 264. 


DE NON SANE MEMORIE. L. Fr. 
Of unsound memory or mind; a phrase syn- 
onymous with non compos mentis. 


DE NOVI OPERIS NUNCIATIONE, 
In the civil law. A form of interiict or in- 
junction which lies in sume cases where the 
defendant is about to erect a “new work” 
(q. ®) in derogation or injury of the plain- 
tiff’s rights. 


DE NOVO. Anew; afresh; a second 
time. <A venire de novo is a writ for sum- 
moning a jury for the second trial of a case 
which has been sent back from above for a 
new trial. 


De nullo, quod est sua natura indi- 
visibile, et divisionem non patitur, 
nullam partem habebit vidua, sed sat- 
isfaciat ei ad valentiam. Co. Litt, 32. 
A widow shall have no part of that which in 
its own nuture is indivisible, and is not sus- 
ceptible of division, but let the heir satisfy 
her with an equivaleut. 


De nullo tenemento, quod tenetur ad 
terminum, fit homagii, fit tamen indo 
fidelitatis sacramentum. In no tenement 
which is held for a term of years is there an 
avail of homage; but there is the oath of 
fealty. Co. Litt. 678. 


DE ODIO ET ATIA. A writ directed 
to the sheriff, commanding him to inquire 
whether a prisoner charged with murder was 
eommitted upon just cause of suspicion, or 
merely propter odium et atiam, (through 
hatred and ill will;) and if, upon the inquisi- 
tion, due cause of suspicion did not appear, 
then there issued another writ for the sheriff 
to admit him to bail. 3 Bl, Comm. 128, 


DE OFFICE. L. Fr. Of office; in vir- 
tuo of office; officially; in the discharge of or- 
dinary duty. 


DE ONERANDO PRO RATA POR- 
TIONE. Writ for charging according toa 
rateable proportion. A writ which lay fors 
joint tenant, or tenant in common, who was 
distrained for more rent than his proportion 


DE PLAGIS ET MAHEMIO 


of the land came to, 
Nat, Brev. 234, H. 


DE PACE ET LEGALITATE 
TENENDA. For keeping the peace, and 
for good bebavior. 


DE PACE ET PLAGIS. Of peace, 
(breach of peace,) and wounds. One of the 
kinds of criminal appeal formerly in use in 
England, and which lay in cases of assault, 
wounding, and breach of the peace. Bract. 
fol. 144; 2 Reeve, Eng. Law, 33. 


DE PACK ET ROBERIA. Of peace 
[breach of peace] and robbery. One of the 
kinds of criminal appeal formerly in use in 
England, and which lay in eases of rubbery 
and breach of the peace. Bract. fol. 146; 2 
Reeve, Eng. Law, 37. 


DE PALABRA. Span. By word; by 
parol. White, New MRecop. b. 2, tit. 19, ¢. 
3, § 2. 


DE PARCO FRACTO. A writ or ac 
tion for damages caused by a pound-breach, 
(gq. v.) It has long been obsolete. Co. Litt. 
47b,; 3 Bl. Comm, 146. 


DE PARTITIONE FACIENDA. A 
writ which lay to make partition of lands or 
tenements held by several as coparceners, 
tenants in common, ete. Reg. Orig. 76; 
Fitzh, Nat. Brev. 61, R; Old Nat. Brev. 142. 


DE PERAMBULATIONE FACIEN- 
DA. A writ which lay where there was a4 
dispute as to the boundaries of two adjacent 
lordships or towns, directed to the sheriff, 
commanding him to take with him twelve 
discreet and lawful knights of his county 
and make the perambulation and set the 
bounds and limits in certainty. Fitzh, Nat, 
Brev. 3809, D. 


DE PIGNORE SUERREPTO FURTI, 
ACTIO. Inthe civillaw. Anaction to re- 
cover a pledge stolen. Inst, 4, 1, 14. 


DE PIPA VINI CARIANDA. A writ 
of trespass for carrying a pipe of wine so 
carelessly that it was stove, and the contents 
lost. Reg. Orig. 110. Alluded to by Sir 
William Jones in his remarks on the case of 
Coggs v. Barnard. Jones, Bailm. 59, 


DE PLACITO. Of a plea; of or in an 
action. Formal words used in declarations 
and other proceedings, as descriptive of the 
particular actiou brought. 


DE PLAGIS ET MAHEMIO. Of 
wounds and mayhem. The name of a crim- 
inal appeal formerly in use in England, in 


Reg. Orig, 182; Fitzh. 


DE PLANO 


eases of wounding and maiming. Bract. 
fol. 1443; 2 Reeve, Eng. Law, 34. See Ap- 
PEAL. 


DE PLANO, Lat. On the ground; on 
alevel. A term of the Roman law descrip- 
tive of the method of hearing causes, when 
the pretor stood on the ground with the snit- 
ors, instead of the more formal method when 
he oceupied a bench or tribunal; hence in- 
formal, or summary. 


DE PLEGIIS ACQUIETANDIS. Writ 
for acquitting or releasing pledges. A writ 
that lay for a surety, against him for whom 
he had become surety for the payment of a 
certain sum of money at a certain day, where 
the latier had not paid the money at the ap- 
pointed day, and the surety was compelled 
to pay it. Reg. Orig. 158; Fitzh. Nat. Brey. 
137, C; 3 Reeve, Eng. Law, 65. 


DE PONENDO SIGILLUM AD EX- 
CEPTIONEM,. Writ for putting a seal to 
an exception. A writ by which justices 
were formerly commanded to put their seals 
to exceptions taken by apartyinasuit. Reg. 
Orig. 182. 


DE POST DISSHISINA. Writ of post 
disseisin. A writ which lay. for him who, 
having recovered lands or tenements by 
precipe quod reddat, on default, or reddi- 
tion, was again disseised by the former dis- 
seisor. Reg. Orig. 208; Fitzh. Nat. Brev. 
190. 


DE PRHEROGATIVA REGIS. The 
statute 17 Edw. I. St. 1, c. 9, defining the 
prerogatives of the crown on certain sub- 
jects, but especially directing that the king 
shall have ward of the lands of idiots, taking 
the profits without waste, and finding them 
necessaries, 2 Steph. Comm. 529. 


DE PRESENTI. Of the present; in 
the present tense. See PER VERBA DE 
PRASENTI. 


DE PROPRIETATE PROBANDA. 
Writ for proving property. A writ directed 
to the sheriff, to inquire of the property or 
goods distrained, where the defendant in an 
action of replevin claims the property. 3 
Bl. Comm. 148; Reg. Orig, 858. 


DE QUIBUS SUR DISSHISIN. An 
ancient writ of entry. 


DE QUO, and DE QUIBUS. Of 
which. Formal words in tho simple writ of 
entry, from which it was called a writ of entry 


331 


| ices to recover the rest. 


DE RECTO PATENS 
“in the guo,” or “in the quibus.” 8 Reeve, 
Eng. Law, 33. 


DE QUOTA LITIS. In the civil law. 
A contract by which one who has a claim 
difficult to recover agrees withanother to give 
apart, for the purpose of obtaining his sery- 
1 Duval, no. 201. 


DE RAPTU VIRGINUM. Of the rav- 
ishment of maids. The name of an appeal 
formerly in use in England in eases of rape. 
Bract. fol. 147; 2 Reeve, Eng. Law, 38. 


DE RATIONABILI PARTE BONO- 
RUM. A writ which lay for the wife and 
children of a deceased person against his ex- 
ecutors, to recover their reasonable part or 
share of his goods. 2 Bl Comm. 492; Fitzh. 
Nat. Brev. 122, L. 


DE RATIONABILIBUS DIVISIS. 
Writ for fixing reasonable boundaries. A 
writ which lay to settle the boundaries be- 
tween the lands of persous in different towns, 
where one complained of encroachment. 
Reg. Orig. 1576; Fitzh. Nat. Brev. 128, M; 
Rose. Real Act. 31; 3 Reeve, Eng. Law, 48. 


DE REBUS. Of things. The title of 
the third part of the Digests or Pandects, 
comprising books 12-19, inclusive. 


DE REBUS DUBIIS. Of doubtful 
things or matters, Dig. 34, 5. 


DE RECORDO ET PROCESSU 
MITTENDIS. Writtosend the record and 
process of acause to a superior court; a 
species of writ of error. Reg. Orig. 209. 


DE RECTO, Writ of right. Reg. Orig. 
1, 2; Braet. fol. 3276. See Writ or Rient. 


DE RECTO DE ADVOCATIONE. 
Writ of right of advowson. Reg. Orig. 298. 
A writ which lay for one who had an estate 
in an advowson to him and his heirs in fee- 
simple, if he were disturbed to present. 
Fitzh, Nat. Brev. 30, B. Abolished by St. 3 
& 4 Wm. IV. c. 27. 


DE RECTO DE RATIONABILI 
PARTE. Writ of right, of reasonable part. 
A writ which lay between privies in blood, 
as between brothers in gavelkind, or between 
sisters or other coparceners for lands in fee- 
siinple, where one was deprived of his or her 
share by another. Reg. Orig. 35; Fitzh. 
Nat. Brey. 9, B. Abolished by St. 3 & 4 
Wm. IV. c. 27. 


DE RECTO PATENS. Writ of right IV 
patent. Reg. Orig. 1. 


DE REDISSEISINA 


DE REDISSHISINA. 
seisin. 
covered by assise of nov 
or common, and the like, and was put in sae: 
session thereof by verdict, and afterwards 
was disseised of the same land, rent, or 
common, by him by whom he was disseised 
before. Reg. Orig. 2060, Fitzh, Nat. Brev. 
183, B 


DE REPARATIONE FACIENDA. A 
writ by which one tenant in common seeks 


to compel another to aid in repairing the | 


property held in common. 8 Barn. & C. 269. 


DE RESCUSSU. Writ of rescue or res- 
cous. A writ which lay where cattle dis- 
trained, or persons arrested, were rescued 
from those taking them. Reg. Orig. 117, 
118; Fitzh. Nat. Brev. 101, C, G. 


DE RETORNO HABENDO. For hay- 
ing a return; to haveareturn. A term ap- 
plied tothe judgment for the defendant in 
an action of replevin, awarding him a re- 
turn of the goods replevied; and to the writ 
or execution issued thereon. 2 Tidd, Pr. 
993, 1038; 3 Bl. Comm. 149. Applied also 
to the sureties given by the plaintiff on com- 
mencing the action. Id. 147. 


DE RIEN CULPABLE. L.Fr, sia 
of nothing; not guilty. 


DE SA VIE. L. Fr. Of his or her life; 
of his own life; as distinguished from pur 
autre vie, for another's life. Litt. §§ 35, 36. 


DE SALVA GARDIA. A writof safe- 
guard allowed to strangers seeking their 
rights in English courts, and apprehending 
violence or injury to their persons or proper- 
ty Reg. Orig. 26. j 


DE SALVO CONDTCTU. A writ of 
safe conduct. leg. Orig. 255, 26. 


DE SCACCARIO. Of or concerning the 
exchequer. 
the fifty-first year of Henry III. 2 Reeve, 
Eng. Law, 61. 


DE SCUTAGIO HABENDO. Writ 
for having (or to have) eseuage or seulage. 
A writ which anciently lay against tenants 
by knight-service, to compel them to serve 
in the king’s wars or send substitutes, or to 
pay eseuage; thatis,asumofmoney. Fitzh. 
Nat. Brey. 83, C. The same writ lay for 
one who had already served in the king's 
army, or paid a fine instead, against those 
who held of him by kniglit-service, to recov- 


332 


Writ of redis- | er his escuage or scutage. Reg. Orig. 88 
A writ which Jay where a man re- | 


| B68. 
The title of a statute passed in | 


DE TEMPORE, ETC. 


Fitzh. Nat. Brev. 85, D, F. 


DEH SHE BENE GERENDO. For be 
having himself well; for his good behavior. 
Yelv. 90, 154. 


DE SECTA AD MOLENDINUM. 
Of suit to a mill. A writ which lay te 
compel one to continue his custom (of grind- 
ing) at a mill. 3 B). Comm. 235; Fitvh, 
Nat. Brev. 122, M. 


De similibus ad similia eadem ratione 
procedendum est. From like things to 
like things we are to proceed by the same 
rule or reason, [7.¢., we are allowed to ar- 
gue from the analogy of cases.] Branch, 
Prine. 


De similibus idem est judicandum. 
Of [respecting] like things, [iu like cases,} 
the judgment is to be thesame. 7 Coke, 18, 


DE SON TORT. L. Fr. Of his own 
wrong. <A stranger who takes upon him to 
acl as an executor without any just authority 
is called an “executor of his own wrong,” 
(de son tort.) 2 Bl. Comm. 507; 2 Steph. 
Comm. 244. 


DE SON TORT DEMESNE. Of his 
own wrong. The law Freneh equivalent of 
the Latin phrase de injuria, (q. v.) 


DE STATUTO MERCATORIO. The 
writ of statute merchant. Reg. Orig. 146). 


DE STATUTO STAPULZA. The writ 
of statute staple. Reg. Orig. 151. 


DE SUPERONERATIONE PASTU- 
Re. Writ of surcharge of pasture. <A jr- 
dicial writ which lay for him who was im- 
pleaded in the county court, for surclarging 
acommon with his cattle, in a case where he 
was formerly impleaded for it in the same 
court, and the cause was remove into one 
of the courts at Westminster. Reg. Jud. 


DE TABULIS HEXHIBENDIS. 
showing the tablets of a will. Dig. 43, 5. 


DE TALLAGIO NON CONCEDEDR- 
DO. Of not allowing talliage. The name 
given to the statutes 25 and 384 Edw. I., re 
stricting the power of the king to grant tal- 
liage, 2 Inst. 532; 2 Reeve, Eng. Law, 104. 


Of 


DE TEMPORE CUJUS CONTRA- 
RIUM MEMCRIA HOMINUM NON 
EXISTIT, From time whereof the mem- 
ory of man does not exist to the contrary. 
Litt. § 170. 


DE TEMPORE, ETC. 


DE TEMPORE IN TEMPUS ET AD 
OMNIA TEMPORA. From time to time, 
and at all times. Townsh. Pl. 17 


DE TEMPS DONT MEMORIE NE 
COURT. L. Fr. From time whereof mem- 
ory runneth not; time out of memory of man. 
Litt. §§ 143, 145, 170. 


DE TESTAMENTIS. Of testaments. 
The title of the fifth part of the Digests or 
Pandects; comprising the twenty-eighth 
to the thirty-sixth books, both inclusive. 


DE THEOLONIO. A writ which lay 
for a person who was prevented from taking 
toll, Reg. Orig. 103. 


DE TRANSGRESSIONE. A writ of 
trespass. Reg. Orig. 92. 


DE FRANSGRESSIONE, AD AU- 
DIENDUM ET TERMINANDUM. A 
writ or commission for the hearing and de- 
termining any outrage or misdemeanor. 


DE UNA PARTE. A. deed de una 
parte is one where only one party grants, 
gives, or binds himself to do a thing to an- 
other. It differs from a deod infer partes, 
{g.v.) 2 Bouv. Inst. no. 2001. 


DE UXORE RAPTA ET ABDUCTA. 
A writ which lay where a man’s wife had 
been ravished and carried away. <A species 
of writ of trespass. Reg. Orig. 97; Fitzh. 
Nat. Brev. 89, O; 3 Bl. Comm. 139. 


DE VASTO. Writ of waste. <A writ 
which might be brought by him who had the 
immediate estate of inheritance in rever~ 
sion or remainder, against the tenant for 
life, in dower, by curtesy, or for years, 
where the latter had committed waste in 
lands; calling upon the tenant to appear 
und show cause why he committed waste 
aud destruction in the place named, to the 
disinherison (ad exhkuvedationem) of the 
plaintiff. Titzh. Nat. Brev. 55, ©; 3 Bl. 
Comm. 227, 228. Abolished by St. 3 & 4 
Wm. 1V.c. 27. 3 Steph. Comin, 506, 


DE VENTRE INSPICIENDO. A writ 
to inspect the body, where a woman feigns 
to be pregnant. to see whether she is with 
child. I[¢ lies for the heir presumptive to ex- 
amine a widow suspected to be feigning 
pregnaney in order to enable a supposititious 
heir to obtain the estate. 1 Bl. Comm. 456; 
2 Steph. Comm. 287. 

It lay also where a woman sentenced to 
death pleaded pregnancy. 4 Bl. Comm. 495. 


883 


DEAD FREIGHT 


This wrif has been recognized in Ameriea. 
2 Chand. Crim. Tr. 381. 


DE VEREBO IN VERBUM. 
word. Braet, fol. 1388. 
word to word. 


DE VERBORUM SIGNIFICA- 
TIONE. Ofthe signification of words. An 
important litle of the Digests or Panieets, 
(Dig. 50, 16,) consisting entirely of deiini- 
tions of words and phrases used in the Ro- 
man law. 


_ DE VI LAICA AMOVENDA. Writ 
of (or for) removing lay force. A writ 
which lay where two parsons contended for 
a church, and one of them entered into it 
with a great number of Zaymen, and held out 
the other vt ef armis; then he that was 
holden out had this writ directed to the 
sheriff, that heremove the force, Reg. Orig. 
59; Fitzh. Nat. Brev. 54, D. 


DE VICINETO. From the neighbor- 
hood, or vicinage. 3 Bl. Comm. 360. A 
term applied to a jury. 


DE WARRANTIA CHART A Writ 
of warranty of charter. A writ which lay 
for him who was enfeoffed, with clause of 
warranty, [in the charter of feoffment, | and 
was afterwards impleaded in an «assise or 
other action, in which he could not vouch or 
call to warranty; in which case he might 
have this writ against the feoffor, or his heir, 
to compel him to warrant the land unto him, 
Reg. Orig. 157; Fitzh. Nat. Brev. 134, D. 
Abolished by St. 3 & 4 Wim. TY. ¢. 27. 


DE WARRANTIA DIL <A writ that 
lay where a man had a day in any action to 
appear in proper person, and the king at that 
day, or before, employed him in some service, 
so that he could not appear at the day in 
court. It was directed to the justices, that 
they should not record him to be in default 
for his not appearing, Fitzh. Nat. Brev. 17, 
A; Termes de Ia Ley, 


DEACON. Inecclesiasticallaw. A min- 
ister or servant in the church, whose otfiee is 
to assist the priest in divine service and the 
distribution of the sacrament. Itis the low- 
est order in the Church of England, 


DEAD BODY. A corpse. 


DEAD FREIGHT. When a merchant 
who has chartered a vessel puts on board a 
part only of the intended cargo, but yet, hav- 
ing chartered the whole vessel, is bound to 
pay freight for the unoccupied capacity, the 


Word for 
Literally, from 


DEAD LETTERS 334 


DEATH 


freight thus due is calicd “dead freight.” L. | this the testator had the unqualified disposal, 


R. 6 Q. B. 528; 15 Hast, 547. 


DEAD LETTERS. Letters which the 
postal department has not been able to de- 
liver to the persons for whom they were in- 
tended. They are sent to the “dead-letter 
office,” where they are opened, and returned 
to the writer if his address can be ascer- 
tained. 


DEAD MAN’S PART. In Englishlaw. 
That portion of the effects of a deceased per- 
son which, by the custom of London and 
York, is allowed to the administrator; being, 
where the deceased leaves a widow and chil- 
dren, one-third; where he leaves only a widow 
or only children, one-half; and, where he 
leaves neither, the whole. This portion the 
administrator was wont to apply to his own 
use, till the statute 1 Jac. Il. e. 17, declared 
that the same should be snibject tothe statute 
of distributions. 2 Bl. Comm. 518; 2steph. 
Comm. 254; 4 Reeve, Eng. Law, 83. <A 
similar portion in Scotch law is culled “dead’s 
part,” (gq. v.) 


DEAD-PLEDGE. A mortgage; mori- 
uum vadium. 


DEAD RENT. In Englishlaw. <A rent 
payable on a mining lease in addition toa roy- 
alty, so called because it is payable although 
the mine may not be worked. 


DEAD USE. A future use. 


DEADHEAD. This term is applied to 
persons other than the officers, agents, or em- 
ployes of a railroad company who are per- 
mittel by the company to travel on the road 
without paying any fare therefor, Phil- 
lips, 21. 


DEADLY FHUD. In old European 
law. A profession of irreconcilable liatred 
till a person is reyenged even by the death of 
his enemy, 


DEADLY WEAPON. Such weapons 
or instruments as are made aud designed 
for offensive or defensive purposes, or for 
the destruction of life or the infilction of in- 
jury. 8 Bush, 887. 

A deadly weapon is one likely to produce 
death or great bodily harm. 58 Cal. 245. 

A deadly weapon is one which in the man- 
ner used is capable of producing death, or of 
inflicting great bodily injury, or svrieusly 
wounding. 4 Tex. App. 327. 

DEAD’S PART. In Scotch law. The 


part remaining over beyond the shares se- 
cured to the widow and children by law. Of 


Bell. 


DEAF AND DUMB. A man that is 
born deaf, dumb, and blind is looked apon by 
the law as in the same state with an idiot, he 


boing supposed incapable of any understand- — 


ing. 1 Bl. Comm. 304. Nevertheless, a 
deaf and dumb person may ke tried for felony 
if the prisuner can be made to understand by 
means of signs. 1 Leach, C. L. 102. 


DEAFFOREST. In old English law. 
To discharge trom being forest. To free 
from forest laws. 


DEAFFORESTED. Discharged from 
being a forest, or freed and exempted from 
the forest laws, 


DEAL. To traffic; to transact business; 
to trade, Muakers of anaccommodatior note 
are deemed dealers with whoever discounts 
it. 1? Wend. 524. 


DEALER. A dealer, in the popalar, and 
therefore in the statutory, sense of the word, 
is nob one who buys to keep, or makes to sell, 
but one who buys to sell again. 27 Pa. St, 
494; 33 Pa, St. 3380. 


DEALINGS. ‘Transactions in the course 
of trade or business, Held to include pay- 
ments to a bankrupt. Moody & M. 137; 3 
Car. & P. 85. 


DEAN. In English ecclesiastical law. 
An ecclesiastical dignitary who presides over 
the chapter of a cathedral, and is next in 
rank to the bishop, So called from having 
been originally appointed to superintend ten 
canons or prebendaries. 1 Bl. Comm, 382; 
Co. Litt. 95; Spelman. 

There are several kinds of deans, namely: Deans 
of chapters; deans of pecullars; rurai deans; deans 


in the colleges; honorary deans; deans of proy- 
inces, 


DEAN AND CHAPTER. In ecclesi- 
astical law. The council of a bishop, to as- 
sist him with their advice in the relizious 
and also in tho temporal affairs of the see. 38 
Coke, 75; 1 Bl. Comm. 882; Co. Litt. 108, 
300. 

DEAN OF THE ARCHES. The pre- 
siding judge of the Court of Arches. He is 
also an assistant judge in the court of ad- 
miralty. 1 Kent, Comm.371; 3 Steph. Comm. 
727, 

DEATH. The extinction of life; the de 
parture of the soul from the body; defined 
by physicians a8 a total stoppage of the cir- 
culation of the blood, and a ecessution of the 


a 


DEATH 


animal and vital functions consequent there- 
on, such 2s respiration, pulsation, ete. 

In tazal contemnlation, if is of two kinds: 
(1) Neturai, 7. ¢., the extinction of life; (2) 
citi], where a person is not actually dead, 
but is adjudged so by the law, as when a 
person is banished or abjures the realm, or 
enters into a monastery. Civil death also 
occurs Where a man, by act of parliament or 
judgment of law, is attainted of treason or 
felony; for immediately upon such attuinder 
he loses (subject, indecd, to some exceptions) 
his civil rights and capacities, and becomes, 
as it were, civiliter morvtuus. But now, by 
the 33 & 34 Vict. c. 23, forfeiture for trea- 
s0n or felony has been abolished, but the per- 
s0n convicted is disqualified for oilices, ete. 
Wharton. 

Natwral death is also used to denote a death 
which occurs by the unassisted operation of nut- 
ural causes, as distinguished from a violent death, 
or one caused or accelerated by the interference of 
human agency. 

DEATH-BED. In Scotch law. 
of sickness which ends in death. 
Inst. 3, 8, 95. 


DEATH-BED DEED. In Scotch law. 
A deed made by a person while laboring 
under a distemper of which he afterwards 
died. Ersk. Inst. 8, 8, 96. A deed is 
understood to be in death-bed, if, before 
signing and delivery thereof, the grantor 
was sick, and never convalesced thereafter. 
1 Forbes, Inst. pt. 3, b. 2, ¢. 4, tit. 1,§ 1. 
But it is not necessary that he should be 
actually confined to his bed at the time of 
making the deed. Bell. 


DEATH’S PART. 
DEAD Man’s Part. 


DEATHSMAN. The executioner; hang- 
man; he that executes the extreme penalty of 
the law 


DEBAUCH. To entice, to corrupt, and, 
when used of a woman, to seduce. Origi- 
nally, the term had a limited signification, 
meaning to entice or draw one away from 
his work, employment, or duty; and from 
this sense its application has enlarged to in- 
clude the corruption of manners and viola- 
tion of the person, Inits modern legal sense, 
the word carries with it the idea of “earnal 
knowledge,” aggravated by assault, violent 
seduction, ravisiment. 2 Hilt. 323. 


DEBENTURE. A certificate given by 
the collector of a port, under the United 
States customs laws, to the effect that an im- 
porter of merchandise therein named is ent: 


A state 
Ersk. 


Seo Drap’s Parr; 


335 


DEBET QUIS JURI, ETC. 


tled to a drawhack, (q. 2.) specifying the 
amount and time when payable. See Act 
Cong. March 2, 1799, § 80. 

In English law. A security for a loan 
of money issued by a public company, usu- 
ally cveating a charge on the whole or a part 
of the company’s stock and property, though 
not necessarily in the form of a mortgage. 
They are subject to certain regulations as to 
the mode of transfer, and ordinarily have 
coupons attached to facilitate the payment of 
interest. They are generally issued in a 
series, with provision that they shall rank 
pert passu in proportion to their amounts. 

An instrument in use in some government 
departments, by which government is charged 
to pay to a creditor or his assigns the sum 
found due on auditing hisaccounts. Brande; 
Blount. 


DEBENTURE STOCK. Astock or 
fund representing money borrowed by a com- 
pany or public body, in England, and charged 
on the whole or part of its property. 


Debet esse finis litium. There ought 
to bean end of suits; there should be some 
period put to litigation. Jenk. Cent. 61. 


DEBET ET DETINET. He owes and 
detains. Words anciently used in the orig- 
inal writ, (and now, in English, in the plain- 
tiffs declaration,) in an action of debt, where 
it was brought by one of the original con- 
tracting parties who personally gave the 
credit, against the other who personally in- 
curred the debt, or against his heirs, if they 
were bound to the payment; as by the obligee 
against the obligor, by the landlord against 
the tenunt, ete. The declaration, in such 
eases, states that the defendant “owes to,” as 
well as “detaius from,” the plaintiff the debt 
or thing in question; and hence the action is 
said to be “in the debet et detinet.” Where 
the declaration merely states that the defend- 
ant detains the debt, (as in actions by and 
against an executor for a debt due to or from 
the testator,) the action is said to be “in the 
detinet” alone. Titzh, Nat. Brev. 119, G.; 
3 Bl. Comm. 155. 


DEBET ET SOLET. (Lat. Heowes and 
is used to.) Where a man sues in a writ of 
right or to recover any right of which he is 
for the first time disseised, as of a suit ata 
mill or in ease of a writ of quod permitiat, 
he brings his writ in the devet et solet. Reg. 
Orig. 144a; Fitzh. Nat. Brey. 122, M. 


Bebet quis juri subjacere ubi delin- 
quit. One [every one] ought to be subject 


DEBET SUA CUIQUE, ETC. 


to the law [of the place] where heoffends. 3 | 


Inst.34. This maximis taken frou Bracton. 
Bract. fol, 1548. 


Debet sua cuique domus esse perfugi- 
am tutissimum. Every man’s houseshould 
be a perfectly saferefuge. 12 Johns. 31, 54. 


¢ 

Debile fundamentum fallit opus. A 
weak foundation frustrates [or renders vain] 
the work [built upon it.] Shep. Touch. 60; 
Noy, Max. 5, max.12; Finch, Law, b. 1, ch. 
3. When the foundation fails, all goes to 
the ground; as, where the cause of action 
fails, the action itself must of necessity fail. 
Wing, Max., 118, 114, max. 40; Broom, Max. 
180, 


DEBIT. Asum charged as due or owing. 
The term is used in book-keeping to denote 
the charging of a person or an account with 
all that is supplied to or paid out for him or 
for the subject of the account. 


DEBITA FUNDI. L. Lat. In Scotch 
law. Debtssecured upon land. Ersk. Inst. 
4,1, 11. 


DEBITA LAICORUM. IL. Lat. In 
old English law. Debts of the laity, or of 
lay persons. Debts recoverable in the civil 
courts wereanciently so called. Crabb, Ning. 
Law, 107. 


Debita sequuntur personam debitoris. 
Debts follow the person of the debtor; that 
is, they lave no locality, and may be eollect- 
ed wherever the debtor can be found. 2 
Kent, Comm. 429; Story, Confi. Laws, § 362. 


DEBITOR. 
law. A debtor. 


In the civil and old English 


Debitor non presumitur donare. A 
debtor is not presumed to make a gift. 
Whatever disposition he makes of his prop- 


erty is supposed to be in satisfaction of his | 


debts. 1 Kames, Eq. 212. Where a debtor 
gives money or goods, or grants land to his 
ereditor, the natural presumption is that be 
means to get free from his obligation, and 
not to make a present, unless donation be 
expressed. Ersk. Inst. 3, 3, 93. 


Debitorum pactionious creditorum 
petitio nee tolli nec minui potest. 1 
Poth. Obl. 103; Broom, Max. 697. The 
rights of creditors can neither be Laken away 
nor diminished by agreements amoung the 
debtors. 


DEBITRIX. A female debtor. 


336 


DEBT 


DEBITUM. Something due, or owing 
a debt. 


Debitum et contractus sunt nullius 
loci. Debt and contract are of [belong to} 
no place; have no particular locality. The 
obligation in these cases is purely personal, 
and actions to enforce it may be brought 
anywhere. 2 Inst. 231; Story, Confl. Laws, 
§ 362; 1 Smith, Lead. Cas, 340, 363. 


DEBITUM IN PR/ESENTI SOL- 
VENDUM IN FUTURO. A debt or ob- 
ligation completa when contracted, but of 
which the performance cannot be required 
till some future period. 


DEBITUM SINE BREVI. L. Lat. 
Debt willout writ; debt without a declara- 
tion. In old practice, this term denoted an 
action begun by original bill, instead of by 
writ. In modern usage, it is sometimes ap- 
plied to a debt evidenced by confession of 
judgment without suit. The equivalent 
Norman-French phrase was “debit sans 
breve.” Both are abbreviated to d. s. 6. 


DEBT. A sum of money due by certain 
and express agreement; as by bond for a de- 
terminate sum, a bill or note, a special bar- 
gain, or a rent reserved on a@ Jease, where 
the amount is xed and specific, and does 
not depend upon any subsequent valuation 
to settle it. 3 Bl. Comm. 154. 

A debt is a sum of money due by contract, 
It is most frequently due by a certain and ex- 
press agreement,which fixes the amount, in- 
dependent of extrinsic circumstances. But 
it is not essential that the contract should he 
express, or that it should fix the precise 
amount to be paid. 1 Pet. 145. 


Standing alone, the word “debt” is as applicable 
to a sum of money which has been promised at 4 
future day, as toa sum of money vow due and pay- 
able. To distinguish between the two, it may be 
said of the former that it is a debt owing, and of 
the latter thatit is a dcbtdue. Whether a claim 
or demand is a debt or not is in no respect deter. 
mined bya reference to the time of payment. A 
sum of money which is certainly and in all events 
payable is a debt, without regard to the fact 
whether it be payable now’or at a future time. A 
sum payable upona contingency, however, is not 
a debt, or does not become a debt until the contin- 
gency has happened, 37 Cal. 524, 

The word “debt” is of large import, including not 
only debts of record, or judgments, and debts by 
specialty, but also obligations arising under sim- 
ple contract, to a very wideextent; and in its pop- 
ular sense includes all that is due to a man under 
any form of obligation or promise, 3 Mete. (Mass.) 
522, 526. 

“Debt” has been differently defined, owing to 
the different subjeci-matter of the statutes in 
which it has been used. Ordinarily, it imporis a 


DEBT 


sum of money arising upon a contract, express or } 
implied. In its more general sense, it is defined | 
to be that which is dus fram one person to another, 
whether-money, goods, orservices; that which one 
person is bound to pay or perform to another. Un- 
der the legal-tender statutes, it seems to import 
any obligation by contract, express or implied, 
which may be discharged by money through the 
voluntary action of the party bound. Wherever 
he may be at liberty to perform his obligation by 
the payment of a specific sum of money, the party 
owing the obligation is subject to what, in these 
statutes, is termed “debt.” 45 Barb. 618. 

The word is sometimes used to denote an 
aggregite of separate debts, or the total sum 
of the existing claims against a person or 
company. ‘Thus we speak of the “national 
debt,” the “bonded debt” of a corporation, 


elec. 


Synonyms. The term “demand” is of 
miich broader import than “debt,” and em- 
braces rights of action belonging to the debt- 
or beyond those which could appropriately be 
called “debts.” In this respect the term “de- 
mand” is one of very extensive import. 2 
Hill, 223. 

The words “debt” and “liability” are not 
synonymous, As applied to the pecuniary 
relations of parties, liability is a term of 
broader significance than debt. The legal | 
acceptation of debt is a sum of inoney due Ly 
certain and express agreement, Liability is 
responsibility; the state of one who is bound 
In Jaw and justice to do something which 
may be enforced by action. ‘This liability 
may arise trom contracts either express or 
implied, or in consequence of torts committed. 
86 Iowa, 226, 

“Debt” is not exactly synonymous with 
“duty.” A debt is a legal liability to pay 
a Specific sum of money: a duty is a legal 
obligation to perform some act. 1 Minor, 
120. 


| 
In practice. The name of a common- 

law action, which lies te recover a certain 

specific sum of money, or a sum that can 

readily be reduced to a certainty. 3 BL. 

Comm. 154; 3 Steph. Comm. 461; 1 Tidd. 

Pr. 3. 

It is said to lie in the @chet and detinet, (when 
tt is stated that the defendant owes and detaius,) 
orin the detinet, (when it is stated merely that 
he detains.) Debt in the detinet for goods differs 
from detinue, because it is not essential in this 
action, as in detinue, that the specific property in 
the goods should have been vested in the plaintiff 
at the time the action is brought, Dyer, 24). 


DEBT BY SIMPLE CONTRACT. A 
debt or demand founded upon a verbal or 
lmplied contract, or upon any written agree. 
ment that is not under seal. 

AM.DICT.LAW—22 


307 


DECANUS 


DEBT BY SPECIALTY. A debt due, 
or acknowleliged fo be due, by some deed or 
instriiment under seal; as a deed of covenant 
or sale, a lease reserving rent, or a bond or 
obligation. 2 Bl. Comm. 465. See SPECIALTY. 


DEBT EX MUTUO. A species of debt 
or obligation mentioned by Glanville and 
Bracton, and which arose ex mutio, ont of a 
certain kind of loan. Glan. Jib. 10, ec. 3; 
Braet. fol. 99. See Muruum; Ex Mu1vo, 


DEBT OF RECORD. A debt which 
appears to be due by the evidence of a court 
of record, as by a Judgment or recognizance, 
2 Bl. Comm. 465. 


DEBTEE. A person to whom a debt is 
due; a creditor. 8 Bl. Comm. 18; Plowd., 
543. Not used, j 


DEBTOR. One who owes a debt; he 
who may be compelled to pay a claim or de- 
mand. 


DEBTOR’S ACT 1869. The statute 32 
& 33 Vict. c. 62, abolishing imprisonment 
for debt in England, and for the punishment 
of fraudulent debtors. 2 Steph. Comm. 159- 
164. Not to be confounded with the Bank- 
ruptey Act of 18609. Mozley & Whitley. 


DEBTOR’S SUMMONS. In English 
law. A summons issuing from a court hay- 
ing jurisdiction in bankruptcy, upon the 
creditor proving a liquidated debt of not less 
than £50, which he has failed to collect after 
reasonable effort, stating that if the debtor 
fail, within one week if a trader, and within 
three weeks if a non-trader, to pay or com- 
pound for the sum specitied, a petition may 
be presented against him praying that he may 
be adjudged a bankrupt. Bankruptey: Act 
1869, § 7; Robs. Bankr.; Mozley & Whitley. 


DECALOGUE. The ten commandments 
given by God to Moses. The Jews called 
them the “Ten Words,” hence the name. 


DECANATUS, A deanery. Spelman. 
A company of ten persons. Calvin. 


DECANIA. The office, jurisdiction, 
territory, or command of a decanus, or dean. 
Spelman, 


DECANUS. In ecclesiastical and old 
Huropean law. An officer having super- 
vision over ten; adean. A term applied not 
only to ecclesiastical, but to civil and mili- 
itary, ollicers. Decanus monasticus; a mMo- 
nastic dean, or dean of a monastery; an offi- 
cer over ten monks. Decanus in majori 
ecclesia ; dean of a cathedral church, presid- 


if 


DECANUS 


ing over ten prebendaries. Decanws episcape ; 
a bishop’s or rural dean, presiding over ten 


3358 


DECIDE 


Also the name of a judicial writ which 
formerly lay to recover lands which had been 


clerks or parishes. Deeanus fribergt; dean ‘ Jost by default by the tenant in a real action, 


of a friborg. An oflicer among the Saxons 
who presided over a friborg, tithing, decen- 
nary, or association of ten inhabitants; other- 
wisecalleda “tithing man,” or “borshold:r.” 
Decanus militaris ; a military officer, having 
command of ten soldiers. Speiman. 

In Roman law. <An oflicer having the 
command of a company or “mess” of ten 
soldiers. Also an officer at Constantinople 
having charge of the burial of the dead. 


DECAPITATION, The act of behead- 
ing. A mode of capital punishment by cut- 
ting off the head. 


DECEHASE, nm. 
life. 


DECEASE, v. To die; to depart life, or 
from life, This has always been a common 
terminsScotchlaw. “Gif ane man deceasis.” 
Skene, 


DECEDENT, A deceased person; one 
who has lately died. Etymologically the word 
denotes a person who is dying, but it has 
eome to be used in Jaw as signifying any de- 
funct person, (testate or intestate,) but al- 
ways with reference to the settlement of his 
estate or the execution of his will. 


Death; departure from 


DECEIT. <A fraudulent and cheating 
misrepresentation, artifice, or device, used 
by one or more persons to deeeive and trick 
another, who is ignorant of the true facts, to 
the prejudice and damage of the party im- 
posed upen, 

A subtle trick or device, whereunto may 
be referred all manner of craft and collusion 
used to deceive and defraud another by any 
means whatsoever, which hath no other or 
more proper name than deceét to distinguish 
the offense. [West Symb. § 68;] Jacob. 

The word “deceit,” as well as “fraud,” excludes 
the idea of mistake, and imports knowledge that 
the artifice or device used to deceive or defraud is 
untrue. 61 JIL, 373. 

In old English law. The name of an 
original writ, and the action founded on ii, 
which lay to recover dainages for any injury 


committed decetifully, cither in the name of | 


another, (as by bringing an action in anoth- 
ers name, and then sullering a nonsuit, 
whereby the plaintiff became liable fo costs, ) 
or by a fraudulent warranty of goods, or 
other personal injury commilted contrary to 
good faith and honesty. Reg. Orig. 112-116; 
Fitzh. Nat. Brev. 95, E, 98. 


| 


in consequence of his not haying been sum- 
moned by the sheriff, or by the eollusion of 
his attorney. Resc. Real Act. 136; 3 BL 
Comm. 166. 


DECEM TALES. (Ten such; or ten 
tales, jurors.) In practice. The name ofa 
writ which issues in England, where, ona 
trial at bar, ten jarors are necessary to make 
upa full panel, commanding the sheriff ta 
summon the requisite number. 3 Bl. Comm. 
364; Reg. Jud. 30); 3 Steph. Comm. 602. 


DECEMVIRI LITIBUS JUDICAN- 
DIS. Lat. Inthe Roman law. . Ten per- 
sons (five senators and five equttes) who 
acted as the council or assistants of the pra- 
tor, when he decided on matters of law. 
Hallifax, Civil Law, b. 3, ¢. 8. According 
to others, they were themselves judges. (al- 
vin. 


DECENNA. In old English law. A 
tithing or decennary; the precinct of a frank- 
pledge; consisting of ten freeholders with 
their families. Spelman. 


DECENNARIUS. Lat. One who held 
one-half a virgate of land. Du Cange. One 
of the ten freeholders in a deeennary. Id. 
Calvin. Decennier. One of the decennarié, 
or ten freeholders making up a tithing. Spel- 
man. 


DECENNARY. A tithing, composed of 
ten neighboring families. 1 Reeve, Eng. 
Law, 13; 1 BI. Comm, 114. 


Deceptis nen decipientibus, jura sub- 
veniunt. The laws help persons who are 
deceived, not those deceiving. Tray, Lat. 
Max. 149. 


DECERN. 
“Decernit and ordainit.” 
927. ‘“Decerns.” 


DECESSUS. In the civil and old En- 
gush law. Death; departure. 


In Scotch law. To decree. 
1 How. State Tr. 
Shaw, 16. 


Decet tamen principem servare leges 
quibus ipse servatus est. It behoves, in- 
deed, the prince to keep the laws by which 
he himself is preserved. 


DECIDE. To decide includes the power 
and right to deliberate, to weigh the reasona 
for and against, to see which preponderate, 
and to be governed by that preponderance. 
5 Gray, 253. 


DECIES TANTUM 339 


DECIES TANTUM. (Ten times as 
much.) The name of an ancient writ that 
was used against a juror who had taken a 
bribe in money for his verdict. The injured 
party could thus recover ten times the amount 
of the bribe. 


DECIMZ. In ecclesiasticallaw. Tentha, 
or tithes. The tenth part of the annual 
profit of each living, payable formerly to the 
pope. There were several valuations made 
of these livings at different times. The de- 
cim@ (tenths) were appropriated to Lhe crown, 
and a new valuation established, by 26 Hen. 
VU. cc. 3. 1B. Comm. 284. See Tires. 


Decimee debentur parocho, Tithes are 
due to the parish priest. 


Decimz de decimatis solvi non da- 
bent. ‘Tithes are not to he paid from that 
which is given for tithes, 


Decims de jure divino et canonica in- 
stitutione pertinent ad personam. Dal. 
50. Tithes belong to the parson by divine 
right and eanonical institution. 


Deecimée non debent solvi, ubi non est 
annua renovatio; et ex annuatis reno- 
vantibus simul semel. Cro. Jac, 42. 
Tithes ought not to be paid where there is 
not an annual renovation, and from annual 
renovations once only, 


DECIMATION, The punishing every 
tenth soldier by lot, for mutiny or other fail- 
ure of duty, was termed “deciznatio legio- 
nis” by the Romans. Sometimes only the 
twentieth nian was punished, (vtcesimetio, ) 
or the hundredth, (centestmatia.) 


DECIME. A French coin of the value of 
the tenth part of a franco, or nearly two cents. 


It is 
Loift, 


Decipi quam fallere est tutius. 
safer to be deceived than to deceive. 
306. 


DECISION. In practice. A judgment 
or decree pronounced by a conrt in settle- 
ment of a controversy submitted to it and 
by way of authoritative answer to the ques- 
tions raised before it. 

“Decision” is not synonymous with “opin- 
ion.” A decision of the court is its judg- 
ment; the opinion is the reasons given for 
that judyment, 13 Cal. 27. 


DECISIVE OATH. 
Where one of the parties to a suit, not being 
able to prove his charge, offered to refer the 
decision of the cause to the oath of his adver- 
sary, which the adversary was bound to ac- 


In the civil law, | 


DECLARATION OF INTENTION 


cept, or tender the same proposal back again, 
otherwise the whole was taken as confessed 
by him. Cod. 4, 1, 12, 


DECLARANT. A person who makes a 
declaration. 
DECLARATION, In pleading. The 


first of the pleadings on the part of the plain- 
tiff in an action at law, being a formal and 
methodical specification of the facts and cir- 
cumstances constituting his cause of action, 
lt commonly comprises several sections or 
divisions, called “counts,” and its formal 
parts follow each other in this order; ‘Title, 
venue, commencement, cause of action, 
counts, conclusion. The declaration, at 
common law, answers to the “libel” in ec- 
clesiastical and admiralty law, the “bill” in 
equity, the “petition” in elvil law, the “com- 
plaint” in code pleading, and the “count” in 
real actions. 

In evidence. An unsworn statement or 
narration of*facts 1made by a party to the 
transaction, or by one who has an Interest in 
the existence of the facts recounted. Ora 
similar statement made by 4 person since de- 
ceased, which is adinissible in evidence in 
soMe cases, Contrary to the generai rule, e. 7., 
a “dying declaration.” 

In practica. The deciaration or declara- 
tory part of a judgment, decree, or order is 
that part which gives the decision or opinion 
of the court on the question of law in the 
ease. Thus, in an action raising a question 
as to the construction of a will, the judgment 
or order declares that, according to the true 
construction of the will, the plaintiff has be- 
come entitled to the residue of the testator’s 
estate, or the like. Sweet. 

In Seotch practice. Thestatement ofa 
criminal or prisoler, taken before a magia~ 
trate. 2 Alis. Crim. Pr. 555. 


DECLARATION OF INDEPEND- 
ENCE. A formal declaration or announce- 
ment, promulgated July 4, 1776, oy the 
congress of the United States of America, in 
the name and behalf of the peopie of the col- 
onies, asserting and proclaiming their inde- 
pendence of the British crown, vindicating 
their pretensions to political autonomy, and 
announcing themselves to the world as a free 
and independent nation. 


DECLARATION OF INTENTION, 
A declaration made by an alien, as 4 prelim- 
inary to naturalization, beforea court of reo- 
ord, to the effect that it is bona fide his in- 
tention to become a eitizen of the United 


DECLARATION OF PARIS 


States, and to renounce forever all allegiance 
und fidelity to any foreign prince, potentate, 
state, or sovercignty whereof at the time he 
may be a citizen or subject. Rev. St. §.2165, 


DECLARATION OF PARIS. The 
hame given to an agreement announcing four 
important rifles of international law effected 
between the principal European powers at 
the Congress of Paris in 1856. These rules 
are: (1) Privateering is and remains abol- 
ished; (2) the neutral flag covers enemy’s 
goods, except contraband of war; (5) neutral 
goods, except contraband of war, are not li- 
able to conliseation under a hostile flag; (4) 
blockades, to be binding, must be effective. 


DECLARATION OF RIGHT. See 
BILL or Rreurs. 
DECLARATION OF TRUST. The 


act by which the person who holds the legal 
title to property or an estate acknowledges 
and declares that he holds the same in trust 
te the use of another person orefor certain 
specified purposes. The name is also use to 
designate the deed or other writing embody- 
ing such a declaration. 


340 


declare and affirm.” 


| the judge is interested in the suit. 


DECLARATION OF WAR, A public | 


and formal proclamation by a nation, through 
its executive or legisiative department, that 
a state of war exists between itself and an- 
other nation, and forbidding all persons to 
aid or assist the enemy. 


DECLARATOR. In Scoteh law. An 
action whereby it is sought to have some 
right of property, or of status, or other right 
judicially ascertained and declared. ell. 


DECLARATOR OF TRUST. In Seotch 
law. An action resorted to against a trustee 
who holds property upon titles ex facie for 
his own benefit. Bell, 


DECLARATORY. Explanatory; de- 
signed to fix or elucidate what efore was un- 
certain or doubtful; as a declaratory statute, 
which is one passed to put an end to a doubt 
as to what the Iaw is, and which declares 


what it is and what it has been. 1 BI. 
Comin. 86. 
DECLARATORY ACTION. InScotch 


law. Anaction in which the right of the pur- 
auer (or plaintiff) is craved to be declared, 
but nothing claimed ta be done by the de- | 
fender, (defendant.) Ersk. Inst. 5, 1, 46. 
Otherwise called an “action of declarator.” 


DECLARATORY DECREE. 
tico. 
without consequential relief. 


In prac. | 


DECOLLATIO 


DECLARATORY JUDGMENT. A 
declaratory judgment is one which simply 
declares the rights of the parties, or expresses 
the opinion of the court on a question of law, 
without ordering anything to be done. 


DECLARATORY PART OF A LAW, 
That which clearly defines rights to be ob 
served and wrongs fo be eschewed. 


DECLARE. To solemnly assert a fact 
before wiinesses, e. g., where a testator de 
clares a paper signed by him to be his last 
will and testament, 

This also is one of the words customarily 
used in the promise given by a person whois 
afirmed as a witness,—“sincerely and truly 
Hence, to make a posi- 
tive and solemn asseveration. 

With reference to pleadings, it means to 
draw up, serve, and file a declaration; e. ¢., 
a “rule to declare.” Also to allege in a dee- 
laration ag a ground or cause of action; as 
“he declares upon a promissory note.” 


DECLINATION. In Seoteh law. <A 
plea to the jurisdiction, on the ground that 


DECLINATOIRES, In French law, 
Pleas to the Jurisdiction of the couré; also of 
dis pendens, and of connexité, (q. 0.) 


DECLINATORY PLEA. In English 
practice. The plea of sanctuary, or of bene- 
fit of clergy, before trial or conviction. 2 
Hale, P. C. 236; 4 Bl. Comm. 383. Now 
abolished. 4 Steph. Comm. 400, note; Id, 
456, note, 


DECLINATURE. In Scotch practice, 
An objection to the jurisdiction of a judge, 
Bell. 


DECOCTION. The act of boiling a sub- 
stance in water, for extracting its virtues. 
Also the liquor in which a substance has been 
boiled; water impregnated with the princi- 
ples of any animal or vegetable substance 
boiled init, Webster. ‘ 

In an indictment “decoction” and “in- 
fusion” areejusdem generis; and if one is al- 
leged to have been aiministered, instead of 


the other, the variance is immaterial. 3 
Camp. 74. 

DECOCTOR. In the Roman law. A 
bankrupt, a spendthrift; a squanderer ot 
| public funds, Calvin, 

DECCOLLATIO, In old English and 


A binding declaration of rightin equity | Seoteh law. Decellation; the punishment of 


beheading. Fleta, lib. 1,¢. 21, § 6. 


DECONFES 


DECONFES. In Frenchlaw. A name 
formerly given to those persons who died 
without confession, whether they refused to 
contess or whether they were criminais to 
whom the sacrament was refused. 


DECOY. A pond used for the breeding 
and maintenance of water-fowl. 11 Mod. 74, 
180; 3 Salk, 9, 


DECOY LETTER. A letter prepared 


341 


and mailed for the purpose of detecting a | 


criminal, particularly one who is perpetrat- 
ing frauds upon the postal or revenue lawa. 
5 Dill. 39. 


DECREE. In practice. The judgment 
of a court of equity or admiralty, answering 
to the judgment of s court of common law. 
A decree in equity isa sentenee or order of 
the court, pronounced on hearing and under- 
standing all the points in issue, and deter- 
mining the right of all the parties to the suit, 
according to equity and good conscience. 2 
Daniell, Ch. Pr. 986. 

Deoeree is the judgment of a court of equity, and 
is, to most fatents and purposes, the same as a 
judgment of a court of common law. A decree, as 
distinguished from an order, is final, and is made 
et the hearing of the cause, whereas an order ig 
interlocutory, and is made on motion or petition. 
Wherever an order may, in a certain event result- 
ing from the direction contained in the order, lead 
to the termination of the suit in ltke manner asa 
decrea made at the hearing, it is called a “deeretal 
order.” Brown. 

It is either interlocutory or final; the former 
where it passes upon some plea or issue arising 
In the cause, but not involving a definitive adjudi- 
eation of the main question; the latter wiera it 
finally determines tho whole matter in dispute. 

In French law. Certain acts of the leg- 
islature or of the sovereign which have the 
force of law are called “decrees,” asthe Ber- 
lin and Milan decreas. 


In Seotch law. A final judgment or 
sentence of court by which the question at 
issue between the parties is decided. 


DECREE DATIVE. In Scotch law. 
An order of a probate court appointing an 
administrator. 


DECREE NISI. A provisional decree, 
which will be made absolute on motion un- 
less cause be shown against it. In English 
practice, 1t ia the order made by the court 
fur divorce, on satisfactory proof being given 
in support of & petition for dissolution of 
marriage; it remains imperfect for at least 
six mouths, (which period may be shortened 
by the court down to thres,) and then, unless 
Bullicient cause ke shown, it is made abso- 


| Seotch law. 


DECREMENTUM MARIS 


lute on motion, and the dissolution takes ef- 
fect, subject to appeal. Whiarton. 


DECREE OF CONSTITUTION. In 
Scotch practice. A decree by which a debt 
ja ascertained. Bell. 

In technical language, a decree which is 
Tequisile to found a title in the person of the 
creditor, whether that necessity arises from 
the death of the debtor or of the creditor, Id. 


DECREE OF FORTHCOMING. In 
A decree made after an arrest- 
ment (g. v.) ordering the debt to be paid or 
the effects of the debtor to bs delivered to the 
arresting creditor. Bell. 


DECREE OF LOCALITY. In Seoteh 
law. The decree of a teind court allocating 
stipend upon different heritors. It is equiva- 
lent to the apportionment of a tithe rent- 
charge. 


DECREE OF MODIFICATION, In 
Scotch law. A decree of the teind court 
modifying or fixing a stipend, 


DECREE OF REGISTRATION. In 
Scotch law. A proceeding giving immediate 
execution to the creditor; similar to a war- 
rant of attorney to confess judgment. 


DECREET. In Seotch law. 
judgment or sentence of a court. 


The final 


DECREET ABSOLVITOR. InScotch 
law. <A decree dismissing a claim, or ac- 
quitting a defendant. 2 Kames, Tig. 367. 


DECREET ARBITRAL. In Seotch 
law. Anaward of arbitrators. 1 Kames, 
Eg. 312, 313; 2 Kames, Eq. 367. 


DECREET COGNITIONIS CAUSA. 
Tn Scotch law. Whena ereditor brings his 
action against the heir of his debtor in order 
to constitute the debt against him and at- 
tach the lands, and the heir appears and re- 
nounces the succession, the court then pro- 
nounces a decree cognitioniscausd. ell. 


DECREET CONDEMNATOR. In 
Scoteh law. One where the decision ia in 
favor of the plaintiff. Ersk. Inst. 4, 3, 5. 


DECREET OF VALUATION OF 
TEINDS. In Scotch law. A sentences of 
the court of sessions, (who are now in the 
place of tiie commissioners for the valuation 
of teinds,) determining the extent and value 
of teinds. Bell. 


DECREMENTUM MARIS. Lat. In 


| old English law. Decrease of the sea; the 


DECREPIT 


receding of the sea from the land. Callis, 
Sewers, (53,) 65. See ReLicrion, 


DECREPIT. This term designates a per- 
son who is disabled, incapable, or incompe- 
tent, either from physical ar mental weak- 
ness or defects, whether produced by age or 
other causes, to such an extent as to render 
the individual comparatively helpless in a 
personal conflict with one possessed of ordi- 
nary health and strength. 16 Tex. App. 11. 


DECRETA. Inthe Roman law. Judi- 
cial sentences given by the emperor as su- 
preme judge. 


Decreta conciliorum non ligant reges 
nostros. Moore, 906. The decrees of coun- 
eils bind not our kings. 


DECRETAL ORDER. In chancery 
practice. An order made by the court of 
chancery, In the nature of a decree, upon a 
motion or petition. 

An order in a chancery suit made on mo- 
tion or otherwise not at the regular hearing 
of a cause, and yet not of an interlocutory 
nature, but finally disposing of the cause, 80 
far as a decree could then have disposed of 
it. Mozley & Whitley. 


DECRETALES BONIFACII OCTA- 
VI. A supplemental collection of the canon 
law, published by Boniface VIII. in 1298, 
called, also, “Liber Sextus Deeretalium,” 
(Sixth Book of the Decretals.) 


DECRETALES GREGORII NONI. 
The decretals of Gregory the Ninth. A col- 
lection of the laws of the church, published 
by order of Gregory LX. in 1227. It is com- 
posed of five books, subdivided into titles, and 
each title is divided into chapters. They are 
cited by using an X, (or eatra,;) thus “Cap. 
BX de Regutis Juris,” ete. 


DECRETALS. In ecclesiastical law. 
Letters of the pope, written at the suit or in- 
stance of one or more persons, determining 
some point or question in ecclesiastical law, 
and possessing the force of law. The decre- 
tals form the second part of the body of can- 
on law. 

This is also the title of the second of the 
two great divisions of the canon law, the 
first being called the “Decree,” (decretum.) 


DECRETO. In Spanish colonial law. 
An order emanating from some snperior tribu- 
nal, promulgated in the name and by the au- 
thority of the sovereign, in relation to eccle- 
siastical matters, Schm. Civil Law, 93, 
note, 


342 


g ne ee er i 


DzDICATE 


DECRETUM. In the civil law. A 
species of imperial constitution, being a 
judgment or sentence given by the emperor 
upon hearing of a cause, (quod imperator 
cognoscens decrevit.) Inst. 1, 2, 6. 

In canon law. An ecclesiastical law, 
in contradistinction to a secular law, (lex.) 
1 Mackeld. Civil Law, p. 81, § 93, (Kauf- 
mann’s note.) 


DECRETUM GRATIANI. Gratian’s 
decree, or decretum. A collection of eccle- 
siastical law in three books or parts, nade in 
the year 1151, by Gratian, a Benedictine 
monk of Bologna, being the oldest as well as 
the first in order of tie collections which to- 
gether form the body of the Roman eanon 
law. 1 Bl. Comm. 82; 1 Reeve, Eng. Law, 
67. 


DECROWNING. The act of depriving 
of a crown. 


DECRY. To cry down; to deprive of 
credit. “The king may at any time decry 
or cry down any coin of the kingdom, and 
mike it no longer current.” 1 Bl. Comm. 
278. 


DECURIO. In the provincial adminis- 
tration of the Roman empire, the decurions 
were the chief men or official personages of the 
large towns. Taken asa body, the decurions 
of a city were charged with the entire con- 
troiund administration of its internal affairs; 
having powers both magisterial and legisla- 
tive. See l Spence, Eq. Jur. 54. 


DEDBANA. In Saxon law. 
homicide or manslaughter. 


An actual 


DEDI. (Lat. I have given.) A word 
used in deeds and other instruments of con- 
veyance when such instruments were made 
in Latin, and anciently held to imply a war- 
ranty of title. 


DEDI ET CONCESSI. I have given 
and granted. The operative words of con- 
veyance in ancient charters of feoffment, 
and deeds of gift and grant; the English 
“given and granted” being still the most 
proper, though not the essential, words by 
which such conveyances are made. 2 BI. 
Comm. 53, 316, 317; 1 Steph. Comm. 164, 
177, 473, 474. 


DEDICATE. To appropriate and set 
apart one’s private property to some public 
use; as to make a private way public by acts 
evincing an intention to do so. 


DEDICATION 


DEDICATION. In real property law. 
An appropriation of Innid to some public use, 
mate by the owner, and accepted for such 
use by or on behalf of the public. 23 Wis. 
416; d3 N. J. Law, 13. 

A deliberate appropriation of land by its 
owner for any general and public uses, re- 
serving to himself no other righis than such 
a8 are perfectly compatible with the full 
exercise and enjoyment of the public uses to 
which he has devoted his property. 22 Wend. 
472. 


In copyright law. The first publication 
of a work, without baving secured a copy- 
right, is a dedication of it to the public; that 
having been done, any one may republish it. 
6 McLean, 82; 7 West. Law J. 49; 5 Mc- 
Lean, 328. 


DEDICATION-DAY. Thefeast of ded- 
ication of churches, or rather the feast day 
of the saint and patron of a church, which 
was celebrated not only by the inhabitants of 
the plice, but by those of all the neighboring 
Villages, who usually came thither; anid such 
asselublies were allowed as lawful. It was 
usual for the people to feast and to drink on 
those days. Cowell. 


DEDIMUS ET CONCESSIMUS. (Lat. 
We have given and granted.) Words used 
by the king, or where there were more gran- 
tors than one, instead of dedé et connesst. 


DEDIMUS POTESTATEM. (We have 
given power.) In English practice. A writ 
ov commission issuing out of chancery, em- 
powering the persons named therein to per- 
form certain acts, as to administer oaths to 
defendants in chancery and take their an- 
swers, to udminister oaths of office to justices 
ot the peace, etc. 3 Bl. Comm. 447. It was 
anciently allowed for many purposes not now 
in use, as to make an attorney, to take the 
acknowledgment of a fine, etc. 

In the United States,a commission to take 
testimony is sometimes termed a “dedimus 
potestatem.” 3 Cranch, 293; 4 Wheat. 508. 


DEDIMUS POTESTATEM DE AT- 
TORNO FACIENDO. In old English 
practice. A writ, issued by royal authority, 
empowering an attorney to appear for a de- 
fendant. Prior to the statute of Westmin- 
ster 2, a party could not appear in court by 
attorney without this writ. 


DEDITION. Theact of yielding up any- 
thing; surrender. 


DEDITITIY. In Roman law. Crimi- 
nals whe had been marked in the face or on 


343 


DEED INDENTED 


the body with fire or an iron, 36 that the 
mark could not be erased, and sulsequentiy 
manumitted, Calvin. 


DEDUCTION. By “deduction” is un- 
derstood a portion or thing which an heir 
has a right to take from the mass of the suc- 
cession before any partition takes place. 
Civil Code La. art. 1358. 


DEDUCTION FOR NEW. In marine 
insurance. An allowance or drawback ered- 
ited to the insurers on the cost of repairing a 
vessel for damage arising from the perils of 
the sea insured against. This allowance is 
usually one-third, and is made on the theory 
that the parts restered with new materials 
are better, in that proportion, than they were 


| before the damage, 


DEED. A sealed instrument, contalning 
a contract or covenant, delivered by the party 
to be bound thereby, and accepted by the 
party to whom the contract or covenant 
runs. 

A writing containing a contract sealed and 
delivered to the party thereto. 3 Washb. 
Real Prop. 239. 

In its legal sense, a “deed” is an instru- 
ment in writing, upon paper or parch- 
ment, between parties able to contract, sub- 
scribed, sealed, and delivered. 60 Ind. 572; 
4 Kent, Comm. 452. 

In a more restricted sense, a written 
agreement, signed, sealed, and delivered, by 
which one person conveys land, tenemenia, 
or hereditaments to another. This is its 
ordinary modern meaning. 

The term is also used as synonymous with 
“fact,” “actuality,” or “ach of parties.” 
Thus a thing “in deed” is one that has been 
really or expressly done; as opposed to “in 
law,” which means that it is merely implied 
or presumed to have been done. 


DEED INDENTED, or INDENT- 
URE. 10 conveyancing. A deed exe- 
cuted or purporting to be executed in parts, 
between two or more parties, and distin. 
guished by having the edge of the paper ot 
parchment on whieh it is written indented 
or cut at the top in a particular matner, 
This was formerly done at the top or sie, in 
& line resembling the teeth of a saw; a for 
mality derived from the ancient practice of 
dividing chirographs; but the cutting is now 
made either in a waving line, or more com- 
monly by notching or nicking the paper at 
the edge. 2 Bl. Comm. 295, 296; Litt. § 370; 
Smith, Cont. 12. 


DEED OF COVENANT 


DEED OF COVENANT. Covenants 
are sometimes entered into by a separate 
deed, for title, or for the indemnity of a 
purchaser or mortgagee, or for the production 
of title-deeds. A covenant with a penalty is 
sometimes taken for the payment of a debt, 
instead of a bond with a condition, but the 
legal remedy is the same in either case. 


DEED POLL. Inconveyancing. <A deed 
of one part or made by one party only; and 
originally so called because the edge of the pa- 
per or parchment was polled or cut In a 
straight line, wherein it was distinguished 
from a deed indented or indenture. 


DEED TO DECLARE USES. A deed 


made after a fine or common recovery, to | 


show the object thereof. 


DEED TO LEAD USES. Adeed made 
before a fine or common recovery, to show 
the object thereof. 


DEEM. Tohold; consider; adjudge; con- 
denn. When, by statute, certain acts are 
“deemed” to be a crime of a particular nat- 
ure, they are such crime, and not a sem- 
blance of it, nor a mere fanciful approxima- 
tion to or designation of the offense. 132 
Mass. 247. 


DEEMSTERS. Judges in the Isle of 
Maan, who decide all controversies without 
process, writings, or any charges. These 
judges are chosen by the people, and are said 
by Spelman to be twoin number. Spelman. 


DEER-FALD. A park or fold for deer. 


DEER-HAYES. Engines or great nets 
nade of cord to cutch deer. 19 Hen. VIII. 
e. 11. 


DEFALCATION. The act of a de- 
faulter; misappropriation of trust funds or 
money held in any fiduciary capacity; failure 
to properly account for such funds. Usually 
spoken of officers of corporations or public 
officials. 

Also set-off. The diminution of a debt or 
claim by deducting from it a smaller claim 
held by the debtor or payor. 


DEFAMATION. The taking from one’s 
reputation. The offense of injuring a per- 
son's character, fame, or repntation by false 
and malicious statements. The term seems 
to be comprehensive of both libel and slander. 


DEFAMES. L. Fr. 


ce. 15. 


Infamous. Britt. 


344 


DEFEND 


DEFAULT. The omission or failure to 
fulfill a duty, observe a promise, discharge 
an obligation, or perform an agreement. 

In practice. Omission; neglecé or fail- 
ure. When a defendant in an action at law 
omits to plead within the time ellowed him 
for that purpose, or fails to appear on the 
trial, he is said to make default, and the judg- 
ment entered in the former case is technical- 
ly called a “judgment by default.” 3 BL 
Comm. 396; 1 Tidd, Pr. 562. 


DEFAULTER. One wlid makes default. 
One who misappropriates money held by him 
in an official or fiduciary character, or fails 
to account for such money. 


DEFEASANCE. An instrument which 
defeats the force or operation of some other 
deed or estate. That which is in the same 
deed is called a “condition;” and that whieh 


isin another deed is a “defeasance.” Com, 
Dig. “Defeasance.” 
In conveyancing. A collateral deed 


made at the same time with a feoffment or 
other conveyance, containing certain condi- 
tions, upon the performance of which the es- 
tate tlien created may be defeated or totally 
undone. 2 Bl. Comm. 327; Co. Litt. 236, 
237, 

An instrument accompanying a bond, re- 
cognizance, or judgment, containing a con- 
dition which, when performed, defeats or un- 
does it, 2 Bl. Comm. 342; Co. Litt. 236, 
237. 

DEFEASIBLE. Subject to be defeated, 
annulled, revoked, or undone upon the hap- 
pening of a future event or the performance 
of a condition subsequent, or by a condi- 
tional limitation. Usually spoken of estates 
and interests inland. For instance, a mort- 
gagee’s estate is deieasible (liable to be de- 
feated) by the mortgagor's equity of redemp- 
tion. 


DEFEAT. See DEFEASANCE. 


DEFECT. The want or absence of some 
legal requisite; deficiency; imperfection; in- 
sufliciency. 


DEFECTUM. Challenge propter, 
CHALLENGE. 


See 


DEFECTUS SANGUINIS. Lat. Fail- 
ure of issue. 


DEFEND. To prohibit or forbid. To 

eny. To contest and endeavor to defeat a 

claim or demand made against one in a court 
of justice. To oppose, repel, or resist. 


DEFEND 


In covenants of warranty in deeds, it 
means to protect, to waintain or keep secure, 
to guaranty, to agree to indemnify. 


DEFENDANT. The person defending 
or denying; the party against whom relief or 
recovery is sought in an action or suit. 

In common usage, this term is applied to the 
perty put upon his defense, or summoned to wn- 
awera charge or complaint, in any species of ac- 
tian, civil or criminal, at law or in equity. 
ly, however, it does not apply to the person against 
whom a real action is brought, for in that proceed- 
{ng the technical usage is to call the parties re- 
spectively the “demandant” and the “tenant.” 


DEFENDANT IN ERROR. The dis- 
tinctive teri appropriate to Lie party against 
who a writ of error is sued out, 


DEFENDEMUS. Lat. A word used in 
grants and donations, which binds the donor 
and his heirs to defend the donee, if any one 
go about to lay any incumbrance on the thing 
given other than what is contained in the 
deed of donation. LBract. 1. 2, c. 16, 


DEFENDER. (Fr.) Todeny;to defend; 
to condnct a suit for a defendant; to forbid; 
to prevent; to protect, 


DEFENDER. 
A defendant. 


DEFENDER OF THE FAITH. A 
peculiar title belonging to the sovereign of 
England, as that of “Catholic” to the king 
of Spain. and that of “Most Christian” to the 
king of France. These titles were originally 
given by the popes of Rome; and that of 
Defensor Fidet was first conferred by Pope 
Leo X. on King Henry VIII,, as a reward 
for writing against Martin Luther; and the 
bull for it bears date guinto Idus Octob., 
1521. Ene. Lond. 


DEFENDERE SE PER CORPUS 
SUUM. To oifer duel or combat asa legal 
trial and appeal. Abolished by 59 Geo. Lil. 
§ 46. See Barre. 


DEFENDERB UNICA MANU. To 
wage law; a denial of an accusation upon 
eath. See WaGhR oF Law, 


In Scotch and eanon Jaw. 


DEFENDIT VIM ET INJURIAM. 
He defends the force and injury. Fletu, 
libs, 6.39, $1. 


DEFENDOUR. L. Fr. <A defender or 
defendant; the party accused in an appeal, 
Britt. ¢. 22. 


DEYENERATION. The act of lending 
money O0 Usury. 


345 


Strict-- 


DEFENSE AU FOND EN FAIT 


DETENSA. Inold English law. A park 
or place fenced in for deer, and defended asa 
property and peculiar fur that use and serv- 
ice, Cowell. 


DEFENSE. That which is offered and 
alleged by the party proceeded against in an 
action or suit, a8 a reason im law or fact why 
the plaintiff should not recover or establish 
what he seeks; what is put forward te defeat 
an action. More properly what is stficzent 
when offered for this purpose. In either of 
these senses it may be either a denial, justi- 
fication, or confession and avoidance of the 
faets averred as a ground of action, or an ex- 
ception to their suiiciency in point of law. 

In a stricter sense, defense is used to de- 
note the answer made by the defeadant to 
the plaintiffs action, by demurrer ur plea at 
law or answer in equity. This i. che meau- 
ing of the term in Seotch law. Ersk. Inst. 
4, 1, 66. 

Hulf defense was that which was made by the 
form “defends the forces and injury, and says,” 
(defendit vim et injuriam, et diet.) 

Tuli defense was that which was made by the 
form “defends the force and injury when and 
where itshall behoove him, and the dameges, and 
whatever else he ought todefend,” (defendit vim 
eLinjuriam quando eb whi curia consideravtt, et 
damnea et quicquid quod ipse dufendere debet, et 
dicit,) commonly shortened into * lefends the force 
and injury when,” etc. Gilb. Com. Pi. 188; $ 
Term. 632; 8 Bos. & P. 9, note; Co. Litt, 127b. 

In matrimonial suits, in Engiand, defenses are 
divided into whsolute, 7. €., sucu as, being estab- 
lished to the satisfaction of the court, are 3 com- 
plete answer to the petition, so that the court can 
exercise no diseretion, but is boand to dismiss the 
petition; and discretionary, or suchas, being estab- 
lished, leave to the court a discretion whether it 
will pronounce a decree or dismiss the petition. 
Thus, in a suit for dissolution, condonation is an 
absolute, adultery by the netiiiouer a discretionary, 
defense. Browne, Div. 80. 

Defense also means the forcible repelling 
of an attack made unlawfully with force 
and violence. 

In old statutes and records, the term means 
prohibition; denial or refusal. Hreonter le 
defense et le comimandement de voy; against 


' the probibitiun and commandment of the 


king. St. Westm.1,¢.1. Also a state of 
severalty, or of several or exclusive occu- 
pancy; a state of inclosure. 


DEFENSE AU FOND EN DROIT, 
In French and Canadian law. A demurrer. 


DEFENSE AU FOND EN PAIT. 
In French and Canadian law. The general 
issue, 8 Low. Can. 421. 


H 


‘ 


ie 


DEFENSIVA 


DEFENSIVA. In old Englishlaw. A | purchaser, but not commencing until a date 


346 


ford or earl of the marches, who was the | 


warden and defender of his country. Cowell. 


DEFENSIVE ALLEGATION. In 
English ecelesiastical law. A species of 


pleading, where the defendant, instead of: 


denying the plaintiff’s charge upon oath, has 
#ny circumstances to offer in his defense. 
This entitles him, in his turn, to the plain- 
tiff’s answer upon oath, upon which he may 
proceed to proofs as well as his antagonist. 
3 Bl. Comm. 100; 3 Steph. Comm. 720. 


DEFENSIVE WAR. A war in defense 
of, or for the protection of, national rights. 
It may be defensive in its principles, though 
offensive in its operations. 1 Kent, Comm. 
50, note. 


DEFENSO,. That part of any open field 
or place that was allotted for corn or hay, and 
upon which there was no common or feed- 


ing, was anciently said to be in defenso; so 


of any meadow ground that was laid in for 
hay only. The same tern was applied to a 
wood where part was inclosed or fenced, to 
secure the growth of the underwood from the 
injury of cattle. Cowell, 


DEFENSOR. In the civil law. A de- 
fender; one who assumed the defense of 
another’s casein court. Also an advocate. 
A tutor or curator. 


In canon law. The advocate or patron 
of achurch. An officer who had charge of 
the temporalities of the church. 

In old English law. <A guardian, de- 
fender, or protector. The defendant in an 
action. A person vouched in to warranty. 


DEFENSOR CIVITATIS. Lat. De- 
fender or protector of a city or municipality. 
An oflicer under the Roman empire, whose 
duty it was to protect the people against the 
injustice of the magistrates, the insolence of 
the subaltern officers, and the rapacity of the 
money-lenders. Schm. Civil Law, Introd. 
16; Cod. 1, 55, 4. He had the powers of a 
judge, with jurisdiction of pecuniary causes 
to a limited amount, and the lighter species 
of offenses. Cod. 1, 55, 1; Nov. 15, ¢. 3, 
§2; Id.c.6,§1. He had also the care of the 
public records, and powers similar to those of 
a notary in regard to the execution of wills 
and conveyances. 


DEFENSUM. Aninclosure of land; any 
fenced ground, See DerEenso. 


DEFERRED LIFE ANNUITIES. 
English law. 


In 


DEFINITIVE 


subsequent to the date of buying them, so 
that, if the purchaser die before that date, the 
purchase money is lost. Granted by the com- 
missioners for reduction of the national debt. 
See 16 & 17 Vict. c. 45, § 2. Wharton. 


DEFERRED STOCK. Stock in a cor 
poration is sometimes divided into “pre- 
ferred,” the holders of which are entitled to 
a fixed dividend payable out of the net earn- 
ings of the whole stock, and “deferred,” the 
holders of which are entitled to all tlie resi- 
due of the net earnings after such fixed div- 
idend has been paid to the holders of the 
preferred stock. Wharton. 


Deficiente uno sanguine non potest 
esse heeres. 3 Coke, 41. One blood being 
wanting, he cannot be heir, But see 3&4 
Wm. IV. c. 106, § 9, and 33 & 34 Vict. ¢. 23, 
Sols 


DEFICIT. Someting wanting, generally 
in the accounts of one intrusted with money, 
or in the money received by him. 


DEFINE, To explain or state the exact 
meaning of words and phrases; to settle, 
take clear, establish boundaries. 


“An examination of our Session Laws will show 
that acts have frequently been passed, the consti- 
tutionality of which has never been questioned, 
where the powers and duties conferred could not 
be considered as merely explaining or making 
more clear those previously conferred or attempt- 
ed to be, although the word ‘define’ was used in 
the title. In legislation it is frequently used in the 
creation, enlarging, and extending the powers and 
duties of boards and officers, in defining certain of- 
fenses and providing punishment for the same, and 
thus enlarging and extending the scope of the 
criminal law. And it is properly used in the title 
where the object of the act is to determine or fix 
boundaries, more especially where a dispute his 
arisen concerning them. It is used between dif- 
ferent governments, as to define the extent of a 
kingdom or country.” 86 Mich. 452. 


DEFINITION. A description of a thing 
by its properties; an explanation of the mean- 
ing of a word or term. Webster. Thi pro- 
cess of stating the exact meaning of a word 
by means of otlier words. Worcester. 


DEFINITIVE. That which finally and 
completely ends and settles a controversy. 
A definitive sentence or judgment is put in 
opposition to an interlocutory judgment. 

A distinction may be taken between a final and 
a definitive judgment. The former term is appli- 
cable when the judgment exhauats the powers of 
the particular court in whichit is rendered; while 
the latter word designates a judgment thatis above 
any review or contingency of reversal. i Cranch 


Annuities for the life of the | 03. 


DEFINITIVE SENTENCE 


DEFINITIVE SENTENCE. The final 
judgment, decree, or sentence of an ecclesias- 
tical court. 3 BI. Comm, 101. 


DEFLORATION. Seduction or debauch- 
ing. The act by which a woman is deprived 
of her virginity. 


DEFORCE. In English law. To with- 
hold wrongfully: to withhold the possession 
of lunds from one who is lawfully entitled to 
them, 3 Bl. Comm. 172. 

In Scotch law. To resist the execution 
of the law; to oppose by force a public officer 
in the execution of his duty. Bell. 


DEFORCEMENT. Deforcement is 
Where aman wrongfully holds lands to which 
another person is entitled. It therefore in- 
cludes disseisin, abatement, discontinuance, 
and intrusion. Co. Litt. 2776, 3516. But 
it is applied especially to cases, not falling 
under those heads, where the person entitled 
to the freehold has never had possession; 
thus, where a lord has a seignory, and lands 
escheat to him propter defeetum sanguinis, 
but the seisin is withheld from him, this isa 
deforcement, and the person who withholds 
the seisin is called a “deforeeor.” 3 BI. 
Comm, 172. 

In Scotch law. The opposition or resist- 
ance made to messengers or other public of- 
ficers while they are actually engaged in the 
exercise of their offices. Ersk. Inst. 4, 4, 32. 


DEFORCIANT. One who wrongfully 
keeps the owner of lands and tenements out 
of the possession of them. 2 Bl. Comm. 350. 


DEFORCIARE. To withhold lands or 
tenements from the rightful owner. Thisis 
a word of art which cannot be supplied by 
any other word. Co, Litt. 3310. 


DEFORCIATIO. Inold Englishlaw. A 
distress, distraint, or seizure of goods for sat- 
isfaction of a lawful debt. Cowell. 


DEFOSSION. 
buried alive. 

DEFRAUD. To practice fraud; to cheat 
or trick; to deprive a person of property or 
any interest, estate, or right by fraud, deceit, 
or artifice, 

DEFRAUDACION. In Spanish law. 
The crime committed by a person who fraud- 
ulently avoids the payment of some public 
tax. 


DEFRAUDATION. 


DEFUNCT. Deceased; a deceased per- 
yon. A common term in Scotch law. 


The punishment of being 


Privation by fraud. 


347 


DEJACION 


DEGASTER. L. Fr. 


DEGRADATION. A deprivation of dig- 
nity; dismission from office, An ecclesias- 
tical censure, whereby a clergyman is divest- 
ed of his holy orders. There are two sorts 
by the canon law,—ono summary, by word 
only; the other solemm, by stripping the 
party desraded of those ornaments and rights 
which are the ensigns of his degree. Degra- 
dation is otiierwise called “deposition,” but 
the canonists have distinguished between 
these two terms, (ileeming the former as the 
greater punishment of the two. There is 
likewise a degradation of a lord or knight at 
cominon law, and also by act of parliament. 
Wharton. 


DEGRADATIONS. 
in the French law. 


DEGRADING. Reviling; holding one 
up to public obloquy; lowering a person in 
the estimation of the public. 


DEGREE. In the law of descent and 
family relations. A step or grade, 3. e., 
the distance, or number of removes, which 
Separates two persons who are related by 
consanguinity. Thus we speak of cousins 
in the “second degree.” 

In criminal law. The term “degree” 
denotes a division or classification of one 
specilic crime into several grades or stadia of 
guilt, according to the circumstances attend- 
ing its commission. Thus, in some states, 
there may be “murder in the second degree.” 


DEHORS. L. Fr. Outof; without; be- 
yond; foreign to; unconneeled with, Dehors 
the record; foreign to the record. 8 BI. 
Comm, 387. 


DEI GRATIA. Lat. By the grace of 
God. A phrase used in the formal title of a 
king or queen, importing a claim of sover- 
eiguty by the favor or commission of God. 
In ancient times it was incorporated in the 
titles of inferior oflicers, (especially ecclesias- 
tical,) but in later use was reserved as an as- 
sertion of “the divine right of kings.” 


DEI JUDICIUM. Thejudgment of God. 
The old Saxon trial by ordeal, so called be- 
cause it was thonght to be an appeal to God 
for the justice of a cause, and it was believed 
thal the decision was according to the will 


To waste. 


A term for waste 


and pleasure of Divine Providence. Whar- 
ton. 
DEJACION. In Spanish law. Surren- 


der; release; abandonment; e. g., the act of 
an insolvent in surrendering his property for 


DEJERATION 


the benefit of his creditors, of un heir in re- 
nuuncing the succession, the abandonment 
of insured property to the underwriters. 


DEJERATION. A taking of « solemn 
oath. 


DEL BIEN ESTRE, L. Fr. In old 
English practice. Of well being; of form. 
The same as de bene esse. Britt. c, 39. 


DEI CREDERE. In mereantile law. 
A phrase borrowed from the Italians, equiv- 
alent toour word “guaranty” or “warranty,” 
or the Scotch term “warrandice;” an agree- 
ment by which a factor, when he sells goods 
on credit, for an additional comission, 
(called a “del oredere commission, ”) guiran- 
ties the solvency of tha purchaser and his 
performance of the contract. Such a factor 
is called a “delerederengent,” Heisa mere 
surety, liable only to his principal in case the 
purchaser makes default. Story, Ag. 28. 


DELAISSEMENT. In French marine 
law. Abandonment. Emerig. Tr. des Ass. 
eh. 17. 


DELATEH. In Scotch law. To accuse. 
Delated, accused. Delatit off arte and parte, 
accused of being accessary to. J How. St. 
Tr, 425, 440. 


DHLATIO, Inthe civillaw. An accu- 
sulion or information. 


DELATOR. <An accuser; an informer; 
a sycophant. 


DELATURA. In oid English law. 
reward of an informer. Whishaw. 


DELEOTUS PERSONA. Lat. Choice 
of the person. By this term is understuod 
the right of a partner to exercise his choice 
and preference as to the admission of any 
new members to the firm, and as to the per- 
sons to be so admitted, if any. 

In Seotch law. The personal preference 
which is supposed to have been exereised by 
a landlord in selecting his tenant, by the 
members of a firm in making choice of part- 
ners, in the appointinent of persons to office, 
and other cases. Nearly equivalent to per- 
sonal trust, aa a doctrine in law. ell. 


The 


Delegata potestas non potest delegari. 
2 Inst. 697. A delegated power cannot be 
delevated. 


DELEGATE. A person who is delegated 
or commissioned to act in the stead of an- 
other; a person to whom affairs are commit- 
ted by another; an attorney. 


848 


DELESTAGE — 


A person elected or appointed to be a mem- 
ber of a representative assembly. Usually 
spoken of one sent la a special or occasional 
assembly or convention. 

The representative in congress of one of 
the organized territories of the United States. 


DELEGATES, THE HIGI COURT 
OF. In English law. Formerly the court 
of appeal from the ecclesiastical and admiral- 
ty courts. Abolished, upon the judicial com- 
mnittes of the privy council being constituted 
the court of appeal in such cases. 


DELEGATION. A sending away; a 
putting into commission; the assignment of 
a debt to another; the intrusting another 
with a general power to act for the good of 
those who depute him. 

At common law. The transfer of au- 
thority by one person to another; the aet of 
making or commissioning a delegate, 

The whole body of delegates or representa- 

tives sent to a coavention or assembly from 
one district, place, or political unit are cel 
lectively spoken of us a “delegation.” 
' In the civil law. A species of novation 
which consists in the change of one debtor 
for another, when he who is indelted substi- 
tutes a third person who obligates himself in 
his stead to the ereditor, so that the first 
debtor is acquitted and his obligation extin- 
guished, and the creditor contents -himseif 
with the obligation of the second debtor, 
Delegation is essentially distinguished from 
any other species of navation, in this: that 
the tormer demands the consent of all three 
parties, but the latter that only of the two 
parties tothe new debt. 1 Domat, § 2318; 
48 Miss. 454. 

Delegation is novation effected by the in- 
tervention of another person whom the debt- 
or, in order to be liberated froin his cred- 
itor, gives to such creditor, or to him whom 
the creditor appoints; and such person sa 
given becomes obliged to the ereditor in the 
place of the original debtor. Burge, Sur, 173, 


Delegatus non potest delegare. A dal- 
egate cannol delegate; an agent cannot dele 
gate his functions to a suhagent without the 
knowledge or consent of the principal; the 
person to whom an office or duty is delegated 
cannot lawfully devolve the duty on anoth- 
er, unless he be expressly authorized so to 
do. 9 Coke, 77; Broom, Max, 840; 2 Kent, 
Comm. 633; 2 Steph. Comm. 119. 


DELESTAGE. In French marine law. 
A discharging of ballast (Zest) from a vessel. 


DELETE 


DELETE. 
strike out. 


In Scotch law. To erase; to 


DELF. A quarry or mine. $1 Eliz.c.7. 


Deliberundum est din quod statuen- 
dum estsemel. 12 Coke, 74. That which 
ie to be resolved once for all should be long 
deliberated upon. 


DELIBERATE, ». To weigh, ponder, | 
discuss. To examine, to consult, in order to 
form an opinion. 


DELIBERATE, adj. Bythe use of 
this word, in describing a crime, the idea is 
conveyed that the perpetrator weighs the 
motives for the act and its consequences, the 
nature of the crime, or other things con- 
nectad with.his intentions, with a view toa 
decision thereon; that le carefully considers 
all these; and that the act is not sudienly 
committed. . It implies that the perpetrator 
must be eapable of the exercise of such 
mental powers as are called into use by de- 
liberation and the consideration and weigh- 
ing of motives and consequences. 28 Iowa, 
524. 

“Deliberation” and “premeditation” are of 
the same character of mental operations, dif- 
fering only indegree. Deliberation is but pro- | 
longed premeditation. In other words, in 
law, deliberation is premeditation in a cool 
state of the blood, or, where there has been 
heat of passion, it is premeditation continued | 
beyond the period within which there has 
been time for Lhe blood to cool, in the given 
ease. Deliberation is not only to think of he- 
forehand, which may be but for an instant, 
but the inclination to dothe act is considered, 
weighed, pondered upon, for such a length 
of time after a provocation is given as the 
jury may find was sufficient for the blood to 
cool, One in a heat of passion may premedi- 
tate without deliberating. Deliberation is 
only exercised in a cool state of the blood, 
while premeditation may ba either in that 
state of the blood or in the heat of passion. 
74 Mo. 249, See, also, 20 Tex. 522; 15 Nev. 
178; 5 Mo. 364; 66 Mo. 13. 


DELIBERATION. The act or process 
of deliberating. The acl of weighing and | 
examining tlhe veasons for and against a con- 
femplated act or course of conduct, or a, 


1 


choice of actsor means. See DeLiBpRRATE. | 


Delicatus debitor est odiosus in lege. 
A luxurious debtoris odiousinlaw. 2 Bulst. 
148. Imprisonment for debt has now, how- 
ever, been generally abolished. 


849 


DELIGIUM 


DELICT. Inthe civillaw. A wrong or 
injury; an offense; a violation of public or 
private duty. It will be observed that this 
word, tuken in its mest general sense, is 
wider in both directions than our English 
term “tort.” On the one hand, it includes 
those wrongful aets which, while directiy af- 
fecting some individual or his property, yet 
extend in their injurious consequences to the 
peace or security of the community atlarge, 
and hence rise to the grade of crimes or mis- 
demeanors. ‘hese acts were termed in the 
Roman law “public deliets;” while those for 
which the only penalty exacted was compen- 
sation to the person primuarily injured were 
denominated “private delicts.” On the other 
hand, the term appears to have included in- 
jurious actions which transpired withont any 
malicious intention on the part of the doer. 
Thus Pothier gives the name “quasi delicts” 
to the acis of a person who, without malig- 
nity, but by an inexcusable imprudence, 
causes an injury to another, Poth. Obl. 
116. But the term is used in modern juris- 
prudence as a convenient synonym of “tort;” 
that is, a wrongful and injurious violation 
of a jus in rem or right available against all 
the world. This appears in the two con- 
trasted phrases, “actions ex eontractu” and 
“actions ex delicta.” 


DELICTUM. Lat. A delict, tort, wrong, 
injury, or offense. Actions ew delicto are 
such as are founded ona tort, as distinguished 
from actions on contract. 

Culpability, blameworthiness, or legal de- 
linquency, The word occurs in this senge in 
the maxim, “Jn pari delicto melior est con- 
ditio defendentis,” (which see.) 

A challenge of a juror propier delietum is 
for some crime or misdemeanor that affects 
his credit and renders himinfamous. 3 BI, 
Comm. 363; 2 Kent, Comm. 241. 


DELIMIT. To mark or lay out the lim- 
its or boundary line of a territory or country, 


DELIMITATION. The act of fixing, 
marking off, or describing the limits or 
boundary line of a territory or country. 


Dilinguens per iram provocatus pu- 
niri debet mitius. 8 Inst, 55. A delin- 


| quent provoked by anger ought to be pun- 


ished more mildly. 


DELINQUENT. In thecivil law. He 
who has been guilty of some crime, offense, 
or failure of duty. 


DELIRIUM. In medical jurisprudence. 
Delirium is that state of the mind in which 


DELIRIOUM 


it acts without being directed by the power 
of volition, which is wholly or partially sus- 
pended. ‘This happens most perfectly in 
dreams. But what is eommenly called “de- 
lirium” is always preceded or attended by a 
feverish and highly diseased state of the 
body. The patient in delirium is wholly un- 
conscious of surrounding objects, or con- 
ceives them to be different from what they 
reallyare. His thoughts seem to drift about, 
wildering and tossing amidst distracted 
dreams. And his observations, when he 
makes any, as often happens, are wild and 
incoherent; or, from excess of pain, he sinks 
intoa low muttering, or silent and death-like 
stupor. Rush, Mind, 9, 298. 

The law contemplates this species of men- 
tal derangement as an intellectual eclipse; as 
a darkness occasioned by a cloud of disease 
passing over the mind; and which must scon 
terminate in health or in death. 1 Bland. 
386. 


DELIRIUM FEBRILE. In medical ju- 
risprudence. A form of mental aberration 
incident to fevers, and sometimes to the last 
stages of chronic diseases. 


DELIRIUM TREMENS. A species of 
mental aberration or temporary insanity 
which is induced by the excessive and pro- 
tracted use of intoxicating liquors. 


DELITO. In Spanish law. Crime; a 
erime, offense, or delict. White, New Recop. 
b. 2, tit. 19, c. 1, § 4. 


DELIVERANCH. In practice. The 
verdict rendered by a jury. 
DELIVERY. In conveyancing. The 


final and absolute transfer of a deed, properly 
execttted, to the grantee, or to some person 
for his use, in sueh manner that it cannot be 
recalled by the grantor. 13 N. J. Eq. 455; 
1 Dev. Eq. 14. 


In the law of sales. The tradition or 
transfer of the possession of personal prop- 
erty frum one person to another. 

Delivery is either actual or constructive. Thus, 
if goods cannot conyeniently be actually handed 
from one person to another, as if they are in a 
warehouse ora ship, the delivery of the key of the 
warehouse, & delivery order, bill of lading, etc., is 


a constructive or symbolical delivery of the goods | 
themselves. Williams, Pers. Prop. 37; Benj. Sales: | 


573. 
In medical jurisprudence. The act of 
a woman giving birth to her offspring. 


DELIVERY BOND. A bond given 
upon the seizure of goods (as under the rev- 
enue laws) conditioned for their restoration 


350 


| questing him to deliver them to a person 


DEMANDA 


te the defendant, or the payment of their val- 
ue, if so adjudged. 


DELIVERY ORDER. An order ad- 
dressed, in England, by the owner of goods 
to a person holding them on his behalf, re- 


named in the order. Delivery orders are 
chiefly used in the ease of goods held by dock 
companies, wharfingers, ete. 


DELUSION. In medical jurisprudence, 
An insane delusion is an unreasoning and in- 
corrigible belief in the existence of facts which 
are either impossible absolutely, or, at least, 
impossible under tie circumstances of the in- 
dividual. Itis never the result of reasoning 
and reflection; it is not generated by them, 
and it cannot be dispelled by them; and hence 
itis not to be confounded with an opéiion, 
however fantastic thelatter may be. 10 Fed. 
Rep. 170. 


DEM. An abbreviation for “demise;” ¢, 
g., Doe dem. Smith, Doe, on the demise of 
Smith. 

DEMAIN. See DEMESNE. 


DEMAND, ov. In practice. To claim 
as one’s due; to require; to ask relief. To 
summon; to call in court. “Although sol- 
emnly demanded, comes not, but makes de- 
fault.” 


DEMAND, n. Aclaim: the assertion ofa 
legal right; a legal obligation asserted in the 
courts. “Demand” isa word of art of an ex- 
tent greater in its signification than any other 
word except “claim.” Co. Litt.291; 2 Hill, 
220. 

Demand embraces all sorts of actions, rights, and 
titles, conditions beforeor after breach, executions, 
appeals, rents of all kinds, covenants, annuities, 
contracts, recognizances, statutes, commons, ete. 
A release of all demands to date burs an action for 
damages accruing after the date from a nuisance 
previously erected. 1 Denio, 257. 

Demand is more comprehensive in import than 
“debt” or “duty.” 4 Johns. 536; 2 Hill, 220. 

Demand, or claim, is properly used in reference 
to a cause of action. 32 How. Pr. 280. 

An imperative request preferred by one 
person to another, under a claim of right, re 
quiring the latter to do or yield something or 
to abstain from some act. 


DEMAND IN RECONVENTION. A 
demand which the defendant institutes in 
consequence of that which the plaintiff bas 
brought against him. Used in Louisiana, 


DEMANDA. In Spanish law. The pe- 
tition of a plaintiff, setting forth his demand. 
Las Partidas. pt. 3, tit. 10, 1. 8. 


} 
(" 


DEMANDANT Oo 


DEMANDANT. The plaintiff or party 
suing in areal action. Co. Litt. 127. 


DEMANDRESS. A female demandant. 


DEMEASE. Inold Englishlaw. Death. 


DEMEMBRATION. In Scotch law. 
Maliciously cutting off or otherwise separat- 
ing one limb from another. 1 Hume, 323; 
Bell. 


DEMENS. One whose mental faculties 
are enfeebled; one who has lost his mind; 
distinguishable from @mens, one totally in- 
sane. 4 Coke, 128. 


DEMENTED. Of unsound mind. 
DEMENTENANT EN AVANT. L. 


Fr. From this time forward. Keliam. 
DEMENTIA. In meiieal jurisprudence. 


That form of insanity where the mental de- 
Tangement is accompanied with a general 
derangement of the faculties. It is echaracter- 
ized by forgetfulness, inability to follow any 
train of thought, and indifference to passing 
events. 4 Sawy. 677, per Field, J. 

Senile dementia is that peculiar decay of 
the mental faculties which occurs in extrems 
old age, and in many cases much earlier, 
whereby the person is reduced to second 
childiood, and becomes sometimes wholly in- 
competent to enter intu any binding contract, 
oreven to execute a will. It is the recur- 
rence of second childhood by mere decay. 1 
Redf. Wills, 63. 

Dementia donotes an impatred state of the men- 
tal powers, afeeblaness of mind caused by disease, 
and not accompanied by delusion er uncontroi- 
lable impulse, without defining the degree of iuca- 


pacity. Dementia may exist without complete 
prostration of the mental powers. 44 N. H, 581. 


DEMESNE. Domain; dominical; held 
in one’s own right, and not of a superior; not 
allotted to tenants. Sea Demesne LANDs. 

In the language of pleading, own; prop- 
er; original. ‘Chus, son assuutt demesne, hia 
own assault, hig assault originally or in the 
first place. 


DEMESNE AS OF FEE. A man is 
said to be seised in his demesne as of fee of a 
corporeal inheritance, because he has a prop- 
erty, dominicum or deinesne, in the thing it- | 
self. But when he has no dominion in the | 
thing itself, as in the case of an incorporeal | 
hereditament, he is said to be setsed as of fee, 
and not in his demesne as of fee. 2 BL. 
Comm. 106; Littleton, § 10; 17 Serg. & R. 
196. 


1 DEMISE 


DEMESNE LANDS. In English law. 
Those lands of a manor not granted out in 
tenancy, but reserved by the lord for his 
own use and oecupation. Lands set apart 
and appropriated by the lord for his own 
private use, as for the supply of his table, 
and the maintenance of his family; the op- 
posite of tenemental lands. Tenancy and 
demesne, however, were not in every sense 
the opposites of each other; lands held for 
years or at will being inciuded among de- 
mesne lands, as well a3 those in the lord’s 
aclual possession. Spelman; 2 Bl. Comm. 
90, 

DEMESNE LANDS OF THE 
CROWW. That shure of lands reserved 
to the crown at the original distribution of 
landed property, or which came to it after- 
wards by forfeiture or otherwise. 1 Bl. 
Comm. 286; 2 Steph. Comm, 550. 


DEMESNIAL, Pertaining toa demesne. 


DEMTI. Freneh. Half; the half. Used 
chiefly in composition. 


DEMI-MARK. Half a mark; a sum of F 
money which was anciently required to be 
tendered in a writ of right, the effect of such 
tender being to put the demanilant, in the 
first instance, upon proof of the seisin asG 
stated in his count; that is, to prove that 
the seisin was in the king’s reign there 
stated. Kose. Real Act. 216, 


DEMI-OFFICIAL. Partly oificial or au- ie 
thorized. Having color of ollicial right. 


DEMI-SANGUE, or DEMY-SANGUE. 
Half-blood. 


DEMI-VILL. A town consisting of five | 
freemen, or frank-pledges. Spelman. 


DEMIDIETAS. In oid records. 
or moiety. 


DEMIES. In some universities and col- J 
leges this Lerm is synonymous with “schol- 
ars.” 

DEMINUTIO. Inthecivillaw. A tak- 
ing away; loss or deprivation. See Carrris|t 
DEMINUTIO, 


DEMISE, v. In conveyancing. Ts 
convey or create an estate for years or life; 
to lease, The usual and operative word ua 
leases: “Have granted, demised, and to 
farm let, and by these presents do grant, 
demise, andto farm iet.” 2 Bl. Comm. 3173 
1 Steph. Comm. 476; Co. Litt. 45a. 


A half 


DEMISE, 2. Inconveyancing. A convey- M 
ance of an estate to another for life, for years, 


DEMISE 352 DEMURRAGE 


or at will; mostcommonly for years; a lease. 
1 Steph. Comm. 475. 

Originally a posthumous grant; commonly 
a lease or conveyance for a term of years; 
sometimes applied to any conveyance, in fee, 
for life, or for years. Pub. St. Mass. 1882, DEMONETIZATION. The disuse ofa 
p. 1289. y particular metal for purposes of coinage. 

“Demise” ia synonymous with “lease” or “let,” | Ihe withdrawal of the value of a metal aa 
exceptthat demise ex vi termini implies a covenant | Money. 


for title, and also a covenant for quiet enjoyment, ; op. 
whereas lease or let implies neither of these cov- DEMONSTRATIO. Description; addi- 


enants. Brown. tion; denomination. Occurring often in the 
The word is also used as a synonym for | Phrase, “alsa demoustratio non nocet,” (a 
“decease” or “death.” It England it is es- false description does not harin.) 


peciall y employed to denote the death of the DEMONSTRATION. Description; 
sovereign, pointing out. That which is said or written 


DEMISE AND REDEMISE. Inecon- | designate a thing or person. 

veyancing. Mutual leases made from one} In evidence. Absolutely convincing 
party to another on euch side, of the same | Proof. That proof which excludes all possi- 
land, or something out of it; as when A. | bility of error. 


grants a lease to B. at a nominal rent, (as of DEMONSTRATIVE LEGACY. Abe 
a pepper corn,) and B. redemises the same quest of a certain sum of money, with a di- 
property to A. fora shorter time at areal, | rection that ib shall be paid out of a partion 
substantial rent. Jacob; Whishaw. lar fund. It differs from a specific legacy in 
DEMISE OF TILE CROWN. The nat- | vhis respect: that, it the fund out of which 
ural dissolution of the king is generally so | it is payable fails for any cause, it is never- 
called; an expression which signities merely | theless entitled to come on the estate asa 
a transfer of property. By demise of the | general legacy. And it differs from a gen- 
crown we mean only that, in consequence of | ral legacy in this: that it does not abate in 
the disunion of the king's natural body from | that class, but in the class of specide legacies. 
his body politic, the kingdom is transferred , 63 Pa. St. 316. See, also, 17 Ohio St. 413; 42 
or demised to his successor, and so the royal | Ala. 9. 
dignity remains perpetual. 1 Bl. Comm, 249; A legacy of quantity is ordinarily a general leg- 
Plowd. 234. acy; but there are legacies of quantity in the 
| nature of specific legacies, as of 80 much money, 
DEMISI. I havedemised or leased. De- with reference toa particular fund for payment 
misi, concessi, et ad jirmam tradidi; have This kind of legacy is called by the civilians a 


e “demonstrative legacy,” and it is so far general 
Lf } % 

demised, granted, and to farm lef. “Phe ust- | ..q-aiers a0 much in effect frour one properly 

al operative words in ancient leases, as the | gpecific that, if the fund be called in or fail, the 


corresponding English words are in the mod- | legatee will not be deprived of his legacy, but be 


ern forms. 2 Bl. Comm. 317, 318. | permitted to receive it out of the general assets; 
yet the legacy is so far specific that it will not be 
DEMOBILIZATION. In military law. | liable to abate with general legacies upon a dofl- 


The dismissal of an army or body of troops | %ucy of assets, 2 Williams, Ex’rs, 1073. 
from active service. DEMPSTER. InScotechiaw. A dooms. 


DEMOCRACY. That form of govern- | ™*- One who pronounced the sentence of 
ment in which the sovereign power resides in court, 1 How, State Tr. 987. 


ani is exercised by the whole body of free DEMUR. Topresenta demurrer; to take 
citizens; as distinguished from a monarcliy,@an exception to the suificiency in point of 
aristocracy, or oligarchy. According to the | law of a pleading or state of facts alleged. 

“y of ra de racy, itiz f a 
eee 0 ap tany <seisyaie eg DEMURRABLE. A pleading, petition, 
should participate directly in the business of 5 2 a F 

: : : or the like, 1s suid to be demurrable when it 
governing, and the legislative assembly . ‘ 
: ‘ does not state such facts as support the claim, 
should comprise the whole people. But the : lef te ae 5 Ch. Di 
ultimate lodgment of the sovereignty being oa or. ee 7 
the distinguishing feature, the introduction , 
of the representative system does not remove DEMURRAGE. In maritimelaw. The 
a government from this type. However, a | sum which is fixed by the contract of car- 
government of the latter kind is sometimes | riage, or which is allowed, as remuneration 


specifically described as a “representative de 
mocracy.” 


DEMOCRATIC. Of or pertaining te 
| democracy, or to the party oi the democrats. 


DEMURRAGE 


353 


DENARIL 5. PETRI 


to the owner of a ship for the detention of | circumstances which ought fo be attendant 
his vessel beyond the number of days allowed ; thereon, the defendant ought not to be com- 


by the charter-party for loading and unload- 
ing or for sailing. Also the detention of the 
vessel by the freighter beyond such time. 
See 3 Kent, Comm. 203; 2 Steph. Comm. 185. 


Demurrage is only anextended freight or reward 
to the vessel, in compensation for the earnings she 
is improperly caused to lose. Every improper de- 
tention of a vessel may be considered a demurrage, 
and compensation under that name be obtained for 
it. 1 Holmes, 250. 

Demurrage is the allowance or compensation due 
to the master or owners of a ship, by the freighter, 
for the time the vessel may have been detained 
beyond the time specified or implied in the con- 
tract of affreizhtment or the charter-party. Bell. 


DEMURRANT. One who demurs; the 
party who, in pleading, interposes a demur- 
rer. 


DEMURRER. In pleading. The form- 
al mode of disputing the sufliciency in law of 
the pleading of the other side. In effect it is 
an allegation that, even if the facts as stated 
in the pleading to which objection is taken 
be true, yet their legal consequences are not 
such as to put the demurring party to the 


necessity of answering them or proceeding | 


further with the cause. 

An objection made by one party to his op- 
ponent’s pleading, alleging that he ought not 
to answer it, for some defect in law in the 
pleading. It admits the facts, and refers the 
law arising thereon to the court. 7 How. 
581. 

It imports that the objecting party will not 
proceed, but will wait the judgment of the 
court whether he is bound so to do, Co, 
Litt. 716; Steph. Pl. 61. 

A general demurrer is one which excepts 
to the sufliciency of a previous pleading in 
general terms, without showing specilically 
the nature of the objection; and such de- 
murrer is sufficient when the objection is on 
matter of subs(ance. 

A special demurrer is one which excepts 
to the sufficieney of the pleadings of the 
other party, and shows specifically the nature 
of the objection and the particular ground of 
exception. Steph. Pi. 158. 


In equity. An allegation of a defendant, 
which, admitting the matters of fact alleged 
by the bill to be true, shows that as they are 
therein set forth they are insutlicient for the 
plaintiff to proceed upon or to oblige the de- 
fendant to answer; or that, for some reason 
apparent on the face of the bill, or on uccount 
of the omission of some matter which ought 
to be contained therein, or for want of some 

AM.DIOT.LAW—2d 


| 


pelled to answer to the whole bill, or to some 
certain part thereof. Mitf. Eq. Pl. 107. 

Demurrer to interrogatories is the reason 
which a witness tenders for not answering 
a particular question in interrogatories. 2 
Swanst, 194. It is not, strictly speaking, a 
demurrer, except in the popular sense of the 
word. Gres. Eq. Ev. 61. 


DEMURRER BOOK. In practice. A 
record of the issue on a demurrer at law, 
containing a transcript of the pleadings, with 
proper entries; and intended for the use of 
the court and counselon the argument, 3 
Bl. Comm. 317; 3 Steph. Comm. 581. 


DEMURRER TO EVIDENCE. This 
procecding (now practicaily obsolete) was 
analogous to a demurrer te a pleading. It 
Was in objection or exception by one of the 
parties in an action at law, to the effect that 
the evidence which his adversary had pro- 
duced was insuflicient in point of law ( wheth- 
er true or not) to make ont his case or sus- 
tain the issue. Upon joinder in demurrer, 
the jury was discharged, and the case was 
argued to the court in bane, who gave judg- 
nent upon the facts as shown in evidence, 
See 3 Bl. Comm. 372. 


DEMY SANKE, DEMY SANGUE. 
Half-blood. A corruption of demi-sang. 


Blount. 
Cowell. 


DEN. A valley. A hollow 


place among woods. 


DEN AND STROND. In old English 
law. Liberty for ships or vessels to run 
aground, or come ashore. Cowell, 


DENARIATH. Inold Englishlaw. <As 
much land as is worth one penny per ane- 
num. 


DENARII. An ancient general term for 
any sort of peeunia numerata, or ready mon- 
ey. The French use the word “denier” in 
the same sense,—payer de ses propres de- 
niers. 


DENARIIT DE CARITATE. In En- 
glish law. Customary oblations made to a 
cathedral church at Pentecost. 


DENARITI §. PETRI. (Commonly called 
“Peter’s Pence.”) An annual payment on 
St. Peter’s feast of a penny from every fam- 
ily to the pope, during the time that the 
Roman Catholic religion was established in 
England. 


DENARIUS 


DENARIUS. The chief silver coin 
among the Romans, worth 8d.; it was the 
seventh part of a Roman ounce. Also an 
English penny. The denarius was first coined 
five years before the first Punic war, B. C. 
269. In later times a copper coin was called 
“denarius.” Smith, Dict. Antiq. 


DENARIUS DEI. (Lat. “God's pen- 
ny.”) Harnest money; money given as a 
token of the completion of a bargain. It dif- 
fers from avrke, in this: that arrhe is a 
part of the consideration, while the denarius 
Dei is no part of ii. The latter was given 
away in charity; whence the name. 


DENARIUS TERTIUS COMITATUS. 
In old English law. <A third part or penny 
of the eounty paid to its earl, the olher two 
parts being reserved to the crown. 


DENIAL. A traverse in the pleading of 
one party of an allegation of fact set up by 
the other; a defense. 


DENIER. L. Fr. In old English law. 
Denial; refusal. Denier is when the rent 
(being demanded upon the land) is not paid. 
Bineh, Law, b. 3,.¢e. 5. 


DENIER A DIEU In French law. 
Tarnest money; a sum of money given in 
token of the completion of a bargain. The 
phrase is a translation of the Latin Denarius 
Det, (q. v.) 


DENIZATION. The act of making one 
a denizen; the conferring of the privileges 
of citizenship upon an alien born, Cro. Jac. 
540. See Denizun. 


DENI4AE. To make a man a denizen or 
citizen, 
DEWNIZEN. In English law. A person 


who, being an alien born, has obtained, ex 
donatione reyis, letters patent to make him 
an English subject,—a high and incoismn- 
@nicable branch of the royal prerogative. A 
denizen is ina kind of middle state between 
an alien and a natural-born subject, and par- 
takes of the status of both of these. 1 BI. 
Comm. 374; 7 Coke, 6. ; 

The term is used to signify a person who, being 
an alien by birth, has obtained letters patent mak- 
ing him an Englishsubject. The king may denize, 
but not naturalize, a man; the latter requiring the 
consent of parliament, as under the naturalization 
act, 1870, (33 & 34 Vict. c. i4.) A denizen holds a 
position milway between an alien and a natural- 
born or naturalized subject, being able to take 
lands by purchase or devise, (which an alien could 
not until 1870 do,) but not able to take lands by 
descent, (which  naturar-born or naturalized sub- 
ject may de.) Brown 


354 


DENUNCIATION 


The word is also used in this sensg in 
South Carolina. See 1 McCord, Eq. 352, 

A denizen, in the primary, but obsolete, 
sense of the word, is a natural-born subject 
ofacountry. Co. Litt. 129a. 


DENMAN’S (LORD) ACT. An English 
statute, for the amendment of thelaw of eyi- 
dence, (6 & 7 Vict. c. 85,) which provides 
that no person offered as a witness shall there- 
after be excluded by reason of incapacity, 
from crime or interest, from giving evidence. 


DENMAN’S (MR.) ACT. An Engiish 
statute, for the amendment of procedure in 


| criminal trials, (28 & 29 Vict. c. 18,) allow- 


—— ee 


ing counsel to sum up the evidence in crimi- 
nal as in civil trials, provided the prisoner be 
defended by counsel. 


DENOMBREMENT. In French feudal 
law. A minute or act drawn up, on the 
ereation of a fief, containing a deseription of 
the fief, and all the rights and incidents be- 
longing to it. Guyot, Inst. Feud. c. 3. 


Denominatio fleri debet a dignioribus. 
Denomination should be made from the more 
worthy. 


DENOUNCEMENT. In Mexican law. 
A denouncement was a judicial proceeding, 
and, though real preperty might be acquired 
by an alien in fraud of the law,—that is, 
without observing its requirements,—he nev- 
ertheless retained his right and title to it, 
but was liable to be deprived of it by the 
proper proceeding of denouncement, which 
in its substantive characteristics was equiy- 
alent to the inquest of office found, at com- 
mion law. 26 Cal. 477, 


DENSHIRING OF LAND.  (Other- 
wise called “burn-beating.”) A method of 
improving land by casting parings of earth, 
turf,and stubbuleinto heaps, which when dried 
are burned into ashes fora compost. Cowell, 


DENUMERATION. 
payment. 

DENUNCIA DE OBRA NUEVA. In 
Spanish law. The denouncement of a new 
work; being a proceeding to restrain the erec- 
tion of some new work, as, for instance, a 
building which may, if completed, injurious- 
ly affect the property of the complainant; it 
is of a character similar to the interdicts of 
possession. Escriche; 1 Cal. 63. 

DENUNCIATION. In the civil law. 
The act by which an individual informs a 
public officer, whose duty it is te prosécute 
offenders, that a crime has been committed 


The act of present 


DENUNCIATION 3 

In Scoteh practice. The act by which 
a person is declared to be a rebel, who has 
disobeyed the charge given on Jetiers of horn- 
ing. ell. 


DENUNTIATIO, In old English law. 
A public notice or sumroons. Bract. 2026. 


DEODAND. (L. Lat. Deo dandum, a 
thing to be given to God.} In English law. 
Any personal chattel which was the immedi- 
ate occasion of the death of any reasonable 
erenture,and which was forfeited tothe crown 
to be applied to pious uses, and distributed 
inalms by the high almoner. 1 Hale, P. C. 
419; Fleta, lib. 1, c. 25; 1 Bl. Comm. 800; 2 
Steph. Comm. 35. 


DEOR HEDGE. In old English law. 
The hedge inclusing a deer park. 


“DEPART. In pleading. To forsake or 
abandon the ground assumed in a former 
pleading, and assume a new one. See Ds- 
PARTURE. 

In maritime law. To leave a port; to 
be out of a port. To depart imports more 
than to sez, or set sail. A warranty in a 
policy that a vessel shall depart on or before 
a particular day is a warranty not only that 
she shall sail, but that. she shall be ovt af the 
port on or before that day. 3 Manle & S. 
461; 3 Kent, Comm. 807, note. “To depart” 
does not mean merely to break ground, but 
fairly to set forward upon the voyage. 6 
Taunt. 241. 


DEPARTMENT. 1. One of the territo- 
rial divisions of a conntry. The term is 
chiefly used in this sense in France, wherethe 
division of the country into departments is 
somewhat analogous, both territorially and 
for governmental purposés. to the division 
of an American slate into counties. 

2. One of the divisions of the executive 
branch of government. Used in this sense 
in the United States, where each department 
is charged with a specific class of duties, and 
comprises an organized staff of officials; e. g., 
the department of state, department of war, 
etc. 

DEPARTURE. In maritime law. A 
deviation from the course prescribed in the 
policy of insurance, 

In pleading. The statement of matter in 
a replication, rejoinder, or subsequent plead~ 
ing, as a cause of action or defense, which is 
not pursuant to the previous pleading ef the 


5 


Bame party, and which does not support and | 
fortify it. 2 Williams, Saund. 4a, note 1; 2 | Spaces of ground in ‘owns reserved for com- 


Wils. 98; Co. Lilt. 304a. 


5 DEPESAS 


A departure, in pleading, is when a party quits 
ot denarts from the ease or defense which he has 
first made, and has recourse to another. 49 Ind. 
lil; 16 Jolins. 205; 18 N. Y. 53, 89. 

A departure takes place when, in any pleading, 
the party deserts the ground that he took in his 
last antecedent pleading, and resorts to another. 
Steph. Pl. 410. Or, in other words, when the sec- 
ond pleading contains matter not pursuant to the 
former, and which does not support and fortify it. 
Co. Litt. 34a. Hence a departure obviously can 
never tale place till ihe replication. Steph. PL 
410. Each subsequent pleading must pursue or 
support the former one; i. ¢., the replication must 
support the declaration, and the rejoinder the plea, 
without departing out of it. 38 Bl. Comm. 310. 


DEPARTURE IN DESPITE OF 
COURT. In old English practice. The 
tenant ina real action, having onee appeared, 
was considered as construetively present in 
court until again calied upon. Hence if, 
upon being demanded, he failed to appear, he 
was said to have “departed in despite [7. ¢., 
contempt] of the court.” 


DEPASTURE. Inold Englishlaw, To 
pasture. “Ifa man depastures unprofitable 
cattle in his ground.” Bunb. 1, case 1. 


DEPECULATION. A robbing of the 
prince or commonwealth; an embezzling of 
the public treasure, 


DEPENDENCY. A territory distinct 
from the country in which the supreme sov- 
ereign power resides, but belonging right- 
fully to it, and subject to the laws and regu- 
lations which the sovereign may think prop- 
er to preseribe. 8 Wash. C. C. 286. 

It differs from a colony, because it is not 
settled by the citizens of the sovereign or 
mother state; aud from possession, because 
it is held by other title than that of mere con- 
quest. 


DEPENDENT CONTRACT. One 
which depends or is conditioned upon an- 
other. One which it is not the duty of the 
contractor to perform until some obligation 
contained in the same agreement has been 
performed by the other party. Ham. Parties, 
17, 29, 30, 109. 


DEPENDENT COVENANTS are those 
in which the performatice of one depends on 
the performance of the other. 


DEPENDING. In practice. Pending 
or undetermined; in progress. See 5 Coke, 
47. 


DEPHSAS. In Spanish-American law, 


mons or public pasturage. 12 Pet. 443, note. 


K 


DEPONE 
DEPONE. In Scotch practice. To de- 
pose; to inake oath in writing. 


DEPONENT. In practice. One who 
deposes (that is, testifies or makes oath in 
writing) to the truth of certain facts; one 
who gives under oath testimony which is re- 
duced to writing; one who makes oath toa 
written statement. ‘The party making an af- 
fidavit is generally so ealled. 

The word “depone,” from which is derived “de- 
ponent,” has relation to the mode in which the 
oath is administered, (by the witness placing his 
hand upon the book of the holy evangelists,) and 
not as to whether the testimony is delivered oral- 
ly or reduced to writing. ‘“ Deponent” is included 


in the term “ witness,” but “witness” is more gen- 
eral. 47 Me, 248. 


DEPONER. In old Scotch practice. A 
deponent. 3 How. State Tr. 695. 
DEPOPULATIO AGRORUM. In old 


English law. The crime of destroying, ray- 
aging, or laying waste a country. 2 Hale, 
P. ©, 333; 4 Bl. Comm. 373. 


DEPOPULATION. In old English law. 
A species of waste by which the population 
of the kingdom was diminished. Depopula- 
tion of houses was a public offense. 12 Coke, 
80, 31, 


DEPORTATIO. Lat. In the civil law. 
A kind of banishment, where a condemned 
person was sent or carried away to some for- 
eign country, usually to an island, {in énsu- 
lam deportatur,) and thus taken out of the 
number of Roman citizens. 


DEPORTATION. Banishment to a for- 
eign country, attended with confiscation of 
property and deprivation of civil rights, A 
punishment derived from the deporitatio (q. 
v.) of the Roman law, and still in use in 
France. 

In Roman law. A_ perpetual lnanish- 
ment, depriving the banished of his rights as 
a citizen; it differed from relegation (q. v.) 
and exile, (q. v.) 1 Brown, Civil & Adm. 
Law, 125, note; Inst. 1, 12, 1, and 2; Dig. 
48, 22, 14, 1. 


DEPOSE. In practice. In ancient 
usage, to testify as a wilness; to give evi- 
detce under oath. 

In modern usage. To make a deposi- 
tion; to give evidence in the shape of a dep- 
osition; to make statements which are writ- 
ten down and sworn to; to give testimony 
which is reduced to writing by a duly-quali- 
fied officer and sworn to by the deponent. 

To deprive an individual of a public em- 


856 


DEPOSIT 


| ployment or officeagainst his will. Wolftius, 

| Iusl. § 1063, The term is usually applied 
to the deprivation of all authority of a sov- 
ereign. 


DEPOSIT. A naked bailment of goods 
to be kept for the depositor without reward, 
and to be returned when he shall require it. 
Jones, Bailm. 36, 117; 9 Mass. 470. 

A bailment of goods te be kept by the 
bauilee without reward, and delivered accord- 
ing to the object or purpose of the original 
trust. Story, Bailm. § 41. 

A deposit, in general, is an act by which 
a@ person receives the property of anotlier, 
binding himself to preserve it and return it 
in kind. Civil Code La. art. 2926. 

When chattels are delivered by one person 
to another to keep for the use of the bailor, 
it is called a “deposit.” The depositary may 
undertake to keep it without reward, or gra- 
tuitonsly; itis then a naked deposit, If he 
receives or expects a reward or hire, he is 
then a depositary for hire. Very variant 
consequences follow the differences in the 
contract. Code Ga. 1882, § 2103. 

According to the classification of the civil 
law, deposits are of the following several 
sorts: (1) Necessary, made upon some sud- 
den emergency, and from some pressing ne- 
cessity; as, for instance, in case of a fire, a 
shipwreck, or other overwhelming ealamity, 
when property is confided to any person 
whom the depositor may meet without prop- 
er opportunity for reflection or choice, and 
thence it is called “miserabile depositum.” 
(2) Voluntary, which arises irom the mere 
consent and agreement of the parties. The 
common Jaw has made no such division. 
There is another class of deposits called “in- 
voluntary,” which may be withont the as- 
sent or even knowledge of the depositor; as 
lumber, etc., left upon another’s land by the 
subsidence of a flood. 

The civilians again divide deposits into 
“simple deposits,” made by one or more per- 
sons liaving a common interest, and “seques- 
trations,” made by one or more persons, each 
of whom has a different and adverse interest 
in controversy touching it; and these last are 
of two sorts,—“conventional,” or such as 
are inaile by the mere agreement of the par- 
ties without any juidicialact; and “judicial,” 
er such ag are made by order of a court in 
the course of some proceeding. 

There is another class of deposits called 
“irregular,” a8 When a person, having a sum 
of money which he does not think safe in his 
own hands, confides it to another, who is to 


DEPOSIT 357 


return to him, not the same money, but a 
like sum when he shal! demand it. There 
is also a “qezasi deposit,” as where a person 
comes lawfully to the possession.of auolher 
person’s property by finding it; anda “special 
deposit” of money or bills in a bank, where 
tlie specific money, the very silver or gold, 
coin er bills, deposited, are to be restored, 
and not an equivalent. Story, Bailm. § 44, 
et saq. 


‘he difference between a deposit anda mandate 
{a that while the object cf a deposit is that the 
thing bailed be kept, simply, the cbject of a man- 
dute is that the thine may be transported fram 
point to point, or that something be dene about it. 
& Ga, 178. 


Depesits made with bankers may be divided in- | 


to two classes,—those in which the bank becomes 
bailee of the depositar, the title to the thing de- 
posited remaining with the latter: and that kind 
peculiar to banking business, in which the depos- 
itor, for his own convenience, parts with the title 
ty his money, and loans it to the banker, and the 
latter, in consideration of the loan of the money, 
and the right to use itfor hisown profit, agrees to 
refund the same amount, or any part thereof, on 
demand, Money collected by one bank for anoth- 
er, placed by the collecting bank with the bulk of 
ils ordinary banking funds, and credited to the 
transmitting bank in account, becomes the money 
of theformer. It is a deposit of the latier class. 
2 Wall, 252. 

Denosit, in respect to dealings of banks, includes 
uot only a bailment of money to be returned in the 
same identical specie, but also ali that class of 
contracts where money is placed in the hands ef 
bankers to be returned, in other money, on cali, 
15 N. Y. 9, 166, 163. 


The word is also sometimes used to desig- 
nate money lodged with a person as an ear- 
nest or security for the performiunce of some 
contract, to be forfeited if the depositor fails 
in hia undertaking. 


DEPOSIT ACCOUNT. An account of 
sums lodged witha bank not to be drawn 


-upon by cheeks, and usually not to be with- 


drawn except after a fixed notice. 


DEPOSIT COMPANY. <A company 
whose business is the safe-keeping of securi- 
ties or other valuables depesited in boxes or 
sates in its building which are leased to the 
depositors. 


DEPOSIT, GRATUITOUS. Gratuitous 
deposit, is a deposit for which the depositary 
receives no consideration beyond the mere 
possession of the thing deposited. Civil 
Code Cal. § 1844. 


DEPOSIT OF TITLE-DEBDS. A 
method of pledging real property as security 


for a loan, by placing the title-deeds of the | 


DEPOSITUM 


DEPOSITARY. The party reeeiving a 
deposit; one with whom anything is lodged 
in trust, as “depository” is the place where 
ifis put. The obligation on the part of the 
depositary is that he keep the thing with 
reasonable care, and, upon request, restore 
ii to the depositor, or otherwise deliver it, 
according to the original trust. 


DEPOSITATION,. In Seotech law. De- 
posit or depositum, the species of bailment 
socalled. Bell. 


DEPOSITION. The testimony of a wit- 
ness taken upon interrogatories, not in open 


, court, but in pursuance of a commission to 


take testimony issued by a court, or under a 
general Jaw on the subject, and reduced to 
writing and duly authenticated, and intend- 
ed to be used upon the trial of an action in 
court. 

A. deposition is a written declaration un- 
der cath, made upon notice to the adverse 
party for the purpose of enaliling him to at- 
tend and cross-examine; or upon written in- 
terrogatories, Code Civil Proc. Cal. § 2004; 
Code Civil Proc. Dak. § 465, 


A deposition is evidence given by a witness un- 
der interrogatories, oral or written, and usually 
written dowu by au official person. In its generic 
sense, it embraces ail written evidence verified by 
oath, and includes affidavits; but, in legal lan- 
guage, a distinction is maintained between depo- 
sitions and affidavits. 3 Blatch?. 456. 

The term sometimes is used in a special 
sensa to denote a statement made orally by a 
person on oath before an examiner, com- 
missioner, or officer of the court, (but not in 
open court,) and taken down in writing by 
the examiner or under his direction. Sweet. 

In ecclesiastical law. The act of de- 
priving a.clergyman, by a competent tribu- 
nal, of his clerical orders, to punish him for 
some offense and to prevent his acting in fut- 
ure in his clericai ehuracter. Ayl. Par. 206. 


DEPOSITO. In Spanish law Deposit; 
the species of bailment so called. Schm. 
Civil Law, 193. 


DEPOSITOR. One who makes a deposit. 


DEPOSITORY. ‘The place where a de- 
posit (g. v.) is placed and kept. 


DEPOSITUM. One of the four real con- 
tracts specified by Justinian, and having the 
following characteristics: (1) The deposi- 
tary or depositee is not liable for negligence, 
however extreme, but only for fraud, delus; 
(2) the property remains in the depositor, 


land in the keeping of the lender as pledges. {| the depositary having only the possession. 


DEPOT 858 


DERELICTION 


Precarium and sequestre were two varieties \ by an agent and by a deputy. An agent can only 


of the depositum, 


DEPOT. In the French !aw, is the depos- 
ttum of the Roman and the deposit of the 
Englishlaw. It is of two kinds, being either 
(1) d*pat simply so called, and which may be 
either voluntary or negessary, and (2) sig wes- 
tre, which is a deposit made either under an 
agreement of the parties, and to abide the 
event of pending liligation regarding it, or 
by virtue of the direction of the court or a 


judge, pending litigation regarding it. 
Brown; Civil Code La. 2897. 
DEPRAVE. To defame; vilify; exhibit 


contempt for. In England itis a criminal of- 
fense to “deprave” the Lorid’s supper or the 
Book of Common Prayer. Steph. Crim. 
Dig.- 99. 


DEPREDATION. Infrenchlaw. The 
pillage which is made of the goods of a de- 
eedent, 


DHPRIVATION. In English ecclesias- 
tical law. ‘The taking away from a clergy- 
man his benefice or other spiritual proinotion 
or diguity, either by sentence declaratory in 
the proper court for fit and sullicient causes or 
in pursuance of divers penal statutes which 
declare the benefice void for some non-feus- 
ance or neglect, or some malfeisance or crime. 
3 Steph. Comm. 87, 85; Burn, Ice. Law, tit. 
“Deprivation.” 


DEPRIVE. Ina constitutional provision 
that no person shall be “deprived of lis 
property” without due process of law, this 
word 1s equivalent to the term “tuke,” and 
denotes a taking altogether, a seizure, a direct 
appropriation, dispossession of the owner. 
21 Pa. St. 147. 


DEPUTIZE. To appoint a deputy; to 
appoint or commission one to act as deputy to 
an officer. In a general sense, the teri is 
descriptive of empowering one person te act 
for another in any capacity or relation, butin 

il is almost always restricled te the sub- 
stitution of a person appuinted to act for an 
officer of the law. 


DEPUTY. A substitute; a person duly 
authorized by an oilicer to exercise some 
or all of the functions pertaining to the office, 
in the place and stead of the latter. 


A deputy differs from an assignee, in that an as- 
Signec has an interest inthe office itself, and does 
all things in his own name, for whom his grantor 
shall not answer, except in special cases; but a 
deputy has not auy interest in the office, and is 
only the shadow of the officer in whose name he 
acts. And there isa distinction in dving an act | 


bind his principal when he does the act in the 
name of the principal. But a deputy may do the 
act and sign his own name, and it binds his prin- 
cipal; for a deputy has, in law, the whole power 
of his principal. Wharton. 


DEPUTY LIEUTENANT. The dep- 
uty of a lord lieutenant of a county in Eng- 
land. 


DEPUTY STEWARD. A steward ofa 
manor may depute or authorize another to 
hold a court; and the acts done in a court so 
holden will be as legal as if the court had 
been holden by the chief steward in per- 
son. So an under sleward or deputy may 
authorize another as subdeputy, pro hae vice, 
tohold 4 court for him; such limited author- 
ity not being inconsistent with the rule dele- 
gatus non potest delegare. Wharton. 


DERAIGN. Seems to mean, literally, to 
confound and. disorder, or to turn out of 
course, or displace; as deraignment or de- 
parture ou€ of religion, in St. 81 Hen. VIIL 
e. 6. Tn the common law, the word is used 
generally in the sense of to prove; viz., to 
deraign a right, deraign the warranty, etc. 
Glanv. lib. 2, ¢. 6; Fitzh. Nat, Brev. 146. 
Perhaps this word “deraign,” and the word 
“deraignment,” derived from it, may be used 
in the sense of to prove and a proving, by 
disproving of what is asserted in opposition 
to truth and fact. Jacob. 


DERECHO. In Spanish law. Law or 
right. Derecho comun, common law. The 
civil law is so called. A right. Derechos, 
rights, 

DERELICT. Forsaken; abandoned; de- 


serted; cast away. 
Personal property abandoned or thrown 


away by the owner in such manner as to in- 


dicate that he intends to make no further 
claim thereto. 2 Bl.Comm.9; 2 Reeve, Eng. 
Law, 9. 

Land left uncovered by the receding of 
water from its former bed. 2 Rolle, Abr. 
170; 2 Bl. Comm, 262; 1 Crabb, Neal Prop. 
109. 


DERELICTION. The gaining of land 
from the water, in consequence of the sea 
shrinking back below the usual water mark; 
the opposite of aldwvion, (g. 0.) Dyer, 3266; 
2 Bl. Comm. 262; 1 Steph. Comm. 419. 

In the civil law. The voluntary aban- 
donment of goods by the owuer, without the 
hope or the purpose of returning to the pos- 
session. 12 Ga. 473; 2 Bl. Comm. 9. 


4 


a 


DERIVATIVA POTESTAS, ETC. 


Derivativa potestas non potest esse 
major primitiva. Noy, Max.; Wing. Max. 
66. The derivative power cannot be greater 
than the primitive. 


DERIVATIVE. Coming from another; 
taken from something preceding; secondary; 
that which has not its origin in itself, but 
owes ils existence to something foregoing. 


DERIVATIVE CONVEYANCES. 
Conveyances which presuppose some other 
couveyanece preeedent, and only serve to en- 
large, confirm, alter, restrain, restore, or 
transfer the interest granted by such origi- 
nal econyevance. They are releases, contir- 
mations, surrenders, assignments, and delea- 
sances. 2 Bj. Comin. 324. 


DEROGATION. ‘The partial repeal or 
abolishing of a law, as by a subsequent act 
which limits its scope or impairs its utility 
and force. Distinguished from abrogation, 
which means the entire repeal and annul- 
ment of alaw. Dig. 50, 17, 102. 


DEROGATORY CLAUSE. In a will, 
this is a sentence or secret character insert- 
ed by the testator, of which he reserves the 
knowledge to himself, with a condition that 
no will he may make thereafter should be 
valid, unless this clause be inserted word for 
word, This is done asa precaution to guard 
against later wills being extorted by violence, 
or otherwise improperly obtained. By the 
law of England such clause would be void, 
as tending to make the will irrevocable. 
Wharton. 


Derogatur legi, cum pars detrahitur; 
abrogatur legi, cum prorsus tollitur. 
To derogate from a law is to lake away part 
of it; to abrogate a Jaw is to abolish it en- 
tirely. Dig. 50, 17, 102. 


DESAFUERO. In Spanish law. An 
irregular action committed with violence 
againsl law, custom, or reason. 


DHSAMORTIZACION. In Mevyican 
law. The desamoriizacion of property is to 
take it out of morbmain, (dead hands;) that 
is, to unlouse it from the grasp, as it were, 
of ecclesiastical or civil corporations. The 
term has no equivalent in English. Hail, 
Mex. Law. § 749. 


DESCENDANT. One who is descended 
from another; a person who proceeds trom 
the body of another, such as a child, grand- 
child, etc., to the remotest degree. The term 
is the opposite of “ascendant,” {(g. v.) 

Descendants is a good term of description 


3889 


——— 
See eS  —— 


DESCRIPTIO PERSON 4 


in a will, and includes all who proceed from 
the body of the person named; as grandchil- 
dren and great-grandchiidren. Amb. 897; 
2 Hil. Real. Prop. 242. 


DESCENDER. 
See ForMEDON. 


Descent; in the descent. 


DESCENT. Hereditary succession. 
Succession to the ownership of an estate by 
inheritanee, or by any act of law, as distin- 
guisheil from “purchase.” Title by descent 
is the title by which one person, upon the 
death of another, acquires the real estate of 
the latter as his heir at law. 2 Bl. Comm. 
201; Com. Dig. “Descent,” A, 


Deseents are of two serts,—lineal, as from father 
or gruudfather to son or grandson; or collatera!}, 
as from brother to brother, or cousin to cousin. 
They are also distinguished into mediate and im- 
mediate descents. But these terms are used in 
different senses. A descent may be said to be a 
mediate or immediate descent of the estate or 
right; orit may be said to be mediate or immediate, 
in regard to the mediateness or immediateness of 
the pedigree or consanguinity. Thus, a descent 
from the grandfather, who dies in possession, to the 
graudchild, the father being theu dead, or from the 
uncle to the nephew, the brother being dead, is, in 
the former sense, in law, immediate descent, al- 
though the one is collateral and the other lineal; for 
the heir is in the per, and notin the per and cui. 
On the other hand, with reference to the line of 
pedigree or consanguinity, a descent is often said 
to be immediate, when the ancestor from whom the 
party derives his blood is immediate, and without 
any intervening link or degrees; and mediate, 
when the kindred is derived from him imethhante 
aitero, another ancestor intervening between 
them. Thus a descent in lineals from father to 
son is in this sense immediate; but adescent from 
grandfather to grandson, the father being dead, 
or from unele te nephew, the brother being dead, 
is deemed mediate; the fatheranod the brother be- 
tug, in these latter cases, the »edizm deyerens, as 
it is called, of the descent or consanguinity. 6 
Pet. 102. 


Descent was denoted, in the Roman law, 
by the term “suecessto,” which is also used 
by Bracton, and from which has been derived 
the succession of the Scotch and French ju- 
risprudence, 


DESCENT CAST. The devolving of 
realty upon the heir on the death of his an- 
eestor intestate, 


DESCRIPTIG PERSONA. Lat. De- 
scription of the person. By this is meanta 
word or phrase used merely for the purpose 
of identifying or pointing out the person in- 
tended, and not as an intimation that the 
language in connection with which it occurs 
is to apply to him only in the official or tech- 
nical character which might appear to be in- 
dicated by the word, 


fa 


_ DESCRIPTION 


DESCRIPTION. 1. A delineation or 
account of a particular subject by the recital 
of its characteristic accidents and qualities. 

2. A written enumeration of items com- 
posing an estate, or of its condition, or of 
titles or documents; like an inventory, but 
with more particularity, and without invoiy~ 
ing the idea of an appraisement. 

3. Anexact written account of an article, 
mechanical device, or process which is the 
subject of an application for a patent. 

4, A method of pointing out a partienlar 
person by referring to his relationship tosome 
other person or his character as an officer, 
trustee, executor, etc. 

5. That part of a conveyance, advertise- 
mentof sale, ete., which identifies the land 
intended to be affected. 


DESERT. To leave or quit with an in- 
tention to cause a permanent separation; to 
forsake utterly; to abandon. 


DESERTION. The act by which a per 
son abandons and forsakes, without justifi- 
eation, or unauthorized, a station or con- 
dition of public or social life, renouncing its 
responsibilities and evading its duties. 

The act of forsaking, deserting, or aban- 
doning a person with whom one is legally 
bound to live, or for whom one is legally 
bound to provide, as a wife or husband. 

The act by which a man quits the society 
ot his wife and children, or either of them, 
and renounces his duties towards them. 

“Yor the purposes of this case it is sufficient to 
gay that the offense of desertion consists in the ces- 
sation of cohabitation, coupled with a determi- 
nation in the mind of the offending person not to 
renew it.” 48 Conn, 318. 

An offense which consists in the abandon- 
ment of his duties by a person employed in 
the public service, in thearmy or navy, with- 
out leave, and with the intention not to 
return. 

In respect to the military service, there is a dis- 


tinction between desertion and simple absence | 


wigout leave. In order to constitute desertion, 


there must be both an absence and an intention not | 


to return to the service. 115 Mass. 836. 


DESERTION OF A SHAMAN. The 
act by which a seaman deserts and abandons 
a ship or vessel, in which he had engaged to 
perform a voyage, before the expiration of 
his time, and without leave. 

By desertion, inthe maritime law, is meant, not 
a mere unauthorized absence from the ship without 
leaye, but an unauthorized abseace from the ship, 
with un intention not to return to her service, or, 
as it is often expressed, canimo non revertenmti; 
that is, with an intention tu desert. 3 Story, 1u3. 


360 


DESPERATE DEBT 


DESHONORA. In Spanish law. Dis- 
honor; injury; slander. Las Puartidas, pt. 7, 
tit. 9, 1. 1, 6. 


DESIGN. In the law of evidence. Pur- 
poss or intention, combined with plan, or im- 
plying a plan in the mind. Burrill, Cire. 
Ey. 3dl. 

As a term of art, the giving of a visible 
form to the conceptions of the mind, or in- 
vention. 4 Wash. C. C. 48. 


Designatio justiciarioriim est a rego; 
juriscictio vero ordinaria a lege. 4 Inst, 
74, The appointment of justices is by the 
king, but their ordinary jurisdiction by the 
law, 


DESIGNATIO PERSONA, The de 
scription of a person or a parly to a deed or 
coutract, 


Designatio unius est oxclusio alterius, 
et expressum facit cessare tacitum. Co. 
Litt. 210. he specifying of one is the ex. 
clusion of another, and that which is ex- 
pressed makes that which is understood to 
cease. 


DESIGNATION. A description or de- 
seriptive expression by which a person or 
thing is denoted in a will without using the 
names 


DESIRE. Thisterm, used ina will in re- 
lation to the management and distribution of 
property, is guilicient to create a trust, ale 
though it is precatory rather than imperative. 
7% iy. 128. 

DESLINDE. A term used in the Span- 
ish law, denoting the act by which the bound- 
aries of an estate or portion of a country are 
determined. 

DESMEMORIADOS. In Spanish law. 


Persons deprived of memory. Whiltv, New 
Recop. b. 1, tit. 2, ¢. 1, § 4. 


DESPACHEURS. In marilime law. 
Persons appointed to settle cases of averugea. 


DESPATCIIES. Official communications 
of official persons on the uifairs of govern. 
ment, 


DESPERATE. Hopeless; worthless, 
This term is used in inventories and sched- 
ules of assets, particularly by executors, etc., 
to deseribe debts or claims which are con- 
sidered impossible or hopeless of collection. 
See 11 Wend. 365. 


DESPERATE DEBT. A hopeless 
debt; an irrecoverable obligation. 


DESPITE 
DESPITE. Contempt. 
tempts. Kelham. 


DESPITUS. Contempt. 
A contemptible person. 


Despitz, con- 


See DESPITE. 
Fleta, lib.4, e. 5. 


DESPOJAR. A possessory action of the 
Mexican law. It is brought to recover pos- 
session of inimovable property, of which one 
las been despoiled (despojado) by another. 


its signification, violence or clandestine 
means by which one is deprived of that which 
he possesses. 1 Cal. 268. 


DESPOIL. This word involves, in its 
signification, violence or clandestine means 
by which one is deprived of that which he 
possesses. Its Spanish equivalent, despojar, 
is a term used in Mexican law. 1 Cal. 268. 


DESPONSATION. The act of betroth- 
ing persons to each other. 


DESPOSORIO. In Spanish law. Es- 
pousals; mutual promises of future marriage. 
White, New Recop. b. 1, tit. 6, c. 1, § 1. 


DESPOT. This word, in its original and 
most simple acceptation, signifies master and 
supreme lord; it is synonymous with mon- 
arch; but taken in bad part, as it is usually 
employed, it signifies a tyrant. In some 
states, despot is the title given to the sover- 
eign, as king is given in others. Inc. Lond. 


DESPOTISM. That abuse of govern- 
ment where the sovereign power is not di- 
vided, but united in the hands of a single 
man, whatever may be his official title. It 
is not, properly, a form of government. 
Toullier, Dr. Civ. Fr. tit. prél. n. 32. 

“Despotism” is not exactly synonymous with 
“autocracy,” for the former involves the idea of 
tyrrany or abuse of power, which is not necessarily 
implied by the latter. Every despotism is auto- 


cratic; but au autocracy is not necessarily despotic. | ‘ ae 
| may be lodged against one within the walls 


DESPOTIZE. Toactasadespot. Web- 
ster. 
DESRENABLE. L.Fr. Unreasonable. 


Britt. c. 121. 


DESSAISISSEMENT. In French law. 
When a person is declared bankrupt, he is 
immediately deprived of the enjoyment and 
administration of all his property; this dep- 
Tivation, which extends to all his rights, is 
called “dessaisissement.” Arg. Fr. Merc. 
Law, 596. 


DESTINATION. ‘The purpose to which 
it is intended an article or a fund shall be 
applied. A testator gives a destination to a 


36] 


> . | Same meaning. 
The word “despoil” (despojar) involves, in | ‘.! 


‘continuance of use. 


DETENTIO 


legacy when he prescribes the specific use to 
which it shall be put. 

The port at which a ship is to end her voy- 
age is called her “port of destination.” 
Pardessus, no. 600. 


DESTRUCTION. A term used in old 
English law, generally in connection with 
waste, and having, according to some, the 
1 Reeve, Eng. Law, 385; 8 
Bl, Comm. 223. Britton, however, makes a 
distinction between waste of woods and de- 
struction of houses. Britt. c. 66. 


DESUBITO. To weary a person with 
continual barkings, and then to lite; spoken 
of dogs. Leg Alured. 26, cited in Cunning. 
ham’s Dict. 


DESUETUDE, Disuse; cessation or dis- 
Applied to obsolete 
statutes. 


DETACHIARE. To seize or take into 
custody another’s goods or person. 


DETAINER. The act (or the juridical 
fact) of withholding from a person lawfully 
entitled the possession of land or goods; or 


| the restraint of a man’s personal liberty 


against his will. 

The wrongful keeping of @ person's goods is 
called an “unlawful detainer” although the 
original taking may have been lawful, Aa, if one 
distrains another’s cattle, damage feasant, and 
before they are impounded the owner tenders 
sufficient amends; now, though the original talr- 
ing was lawful, the subsequent detention of them 
after tender of amends is not lawful, and the own- 
er bas an action of replevin to recover them, in 
which he will recover damages for the detention, 
and not for the ecaption, because the original tak- 
ing was lawful. 3 Steph. Comm. 548. 

In practice. A writ or instrument, is- 
sued or made by acompetent officer, authoriz- 
ing the keeper of a prison to keep in his cus- 
tody a person therein named. <A detlainer 


of a prison, on what account soever he is 
there. Com. Dig. “Process,” E, (3 B.) 
This writ was superseded by 1 & 2 Vict. c, 
110, §§ 1, 2. 


DETAINMENT. This term is used in 
policies of marine insurance, in the clause 
relating to “arrests, restraints, and detain- 
ments.” The last two words are construed 
as equivalents, each meaning the effect of 
superior foree operating directly on the ves- 
sel. 6 Mass. 109. 


DETENTIO. In the civil law. That 
condition of fact under which one can exer- 
cise his power over a corporeal thing at his 


E 


G 


H 


J 


K 


DETENTION 


pleasure, to the exelusion of all others. 
torins the substance of possession in all its 
varieties. Mackeld. Rom. Law, § 238. 


DETENTION. The act of keeping back 
or withholding, either accidentally or by de- 
sign, a person or thing. See DETAINER. 


DETENTION IN A REFORMA- 
TORY, as a punishment or measure of pre- 
vention, ig where a juvenile offender is sen- 
tenced to be sent to a reformatory school, to 
be there detained fora certain period of time. 
1 Russ. Crimes, 82. 


DETERMINABLE. That which may 
cease or determine upon the happening of a 
certain contingency. 2 Bl. Comm. 121. 


DETERMINABLE FRE. (Also called 
a “qualified” or “base” fee.) One which has 
a qualification subjoined to it, and which 
must be determined whenever the qualilica- 
tion annexed to itis atan end. 2BI.Comm. 
109. 

An estate in fee which is liable to be de- 
termined by some act or event expressed on 
its limitation to cireumscribe its continuance, 
or inferred by law as bounding its extent. 
1 Wasbb. Real Prop. 62; 35 Wis. 36, 


DETERMINABLE FREBHOLDS. Es- 
tates for life, which may delermine upon 
future contingencies before the life for which 
they are created expires. As if an estate be 
granted to a woman during her widowhood, 
or to aman until he be promoted to a bene- 
fice; in these and similar cases, wlienever the 
contingeney happens. —when the widow mar- 
ries, or when the grantee obtains the benefice, 
—the respective cstates are absolutely deter- 
mined and gone. Yet, while they subsist, 
they are reckoned estates for life; because 
they may by pussibility last for life, if the 
contingencies upon which they are to deter- 
mine do not souner happen. 2 Bl. Comm. 
q2i. 


DETERMINATE. That which is ascer- 
tained; what is particularly designated. 


DETERMINATION. The decision of a 
court of justice. The ending or expiration 
of an estate or interest in property, or of a 
right, power, or authority. 


DETERMINE. Tocometoanend. To 
bring toanend, 2 Bl. Comm, 121; 1 Washb. 
Real Prop. 380. 


DETESTATIO, Lat. In the civil law. 
A summoning male, or notice given, in the 


362 


DETUNICARI 


It | presence of witnesses, (denuntiatio facta 


cum testutione.) Dig. 50, 16, 40. 


DEHTINET. Lat. He detains. In old 
English law. <A species of action of debt, 
which lay for the spevifie recovery of goods, 
under a contract todeliver them. 1 Reeves, 
Eng. Law, 159. 


in pleading. An action of drdt is said to 
be in the detinet when it is alleged merely 
that the defendant withholds or unjustly de- 
tains from the plaintiff the thing or amount 
demanded. 

An action of replevin is said to be in the 
detinet when the defendant relaing posses- 
sion of the property until after judgment in 
the action, Bull. N. P. 52; Clit. Pl. 145. 


DETINUE. In practice. A form of ac- 
tion which lies for the recovers, i specie, 
of personal chatiels from one who acquired 
possession of them lawfully, but retains it 
wilhout right, together with damages for the 
detention. 3 Bl. Comm. 152. 

The action of detiniue is defined in the old booka 
as a remedy founded upon the delivery of goods 
by the owner to another to keep, who afterwards 
refuses to redeliver them to the bailor; and it is 
said that, to authorize the maintenance of the ac- 
tion, it is necessary that the defendant should have 
come lawfully into the possession of the chattel, 
either by delivery to him or by finding it. In fact, 
it was once understood to be the law that detinwe 
docs not lie where the property had been tertiously 
taken. But it is, upon principle, very unimpor- 
tant in what manner the defendanit’s possession 
commenced, since the gist of the action is the 
wrongful detainer, and not the original talking. 
It is only incumbent upon the plaintiff to prove 
property in himself, and possession in the defend- 
ant. At present, the action of detinue is propor 
in every case where the owner prefers recovering 
the specific property to damages for its conversion, 
and no regard is had to the manner in which the 
defendant acquired the possession. 9 Port. (Ala.) 
151. 


DETINUE OF GOODS IN FRANE 
MARRIAGE. A writ formerly available 
toa wife after a divorce, for the recovery of 
the goods given with her in marriage. Moz 
ley & Whitley. 


DETINUIT. In pleading. An action of 
replevin is said to be in the detinuzt when 
the plaintiff acquires possession of the prop- 
erty claimed by means of the writ. ‘The right 
to retain is, of course, subject in such ease to 
the judgment of the court upon his title to 
the property claimed. Bull. N. P. 521. 


DETRACTARI. To be torn in pieces 
by horses. Fleta, 1. 1, ¢. 37. 


DETUNICARI. To discover or lay open 
to the world. Matt. Westm. 1240. 


DEUNX 363 DEVISAVIT VEL NON 
DEUNX, pl. DEUNCHS. Lat. In the DEVEST. To deprive; to take away; to 


Roman law. A. division of the as, contain- | 
ing eleven uncie or duodecimal parts; the pro- 
portion of eleven-twelfths. 2 Bl. Comm, 
462, note. See As. 


Deus solus hsredem facere potest, 


non home. God alone, and not man, can 
make an livir. Co. Litt. 74; Broom. Max. 
516. 


DEUTEROGAMY. The wet, or condi- 
tion, of one who marries a wife after the 
death of a former wife. 


DEVADIATUS, or DIVADIATUS. | 
An offender without sureties or pledges. 
Cowell. 


DEVASTATION. Wasteful use of the 
property of a deceased person, as for extrav- | 
avant funeral or other unnecessary ex- 
penses. 2 Bl, Comm. 508. 


DEVASTAVERUNT. They have wast- 
ed. A term applied in old English law to 
wiste by executors and administrators, and 
to the process issued ayainst them therefor. | 
Cowell. see DevasTavit. 


DEVASTAVIT. Juat. He has wasted. 
The act of an exeentor or adiinistrator in 
wasting the goods of the deceased; misman- 
agement of the estate by which a loss occurs; 
a breach of trust or misappropriation of as- 
sets held in a fiduciary character; any viola- 
tion or neglect of duty by an executor or ad- 
ministrator, involving loss fo the decedent’s 
estate, wlich makes him personally respon- 
sible to heirs, creditors, or legutees, 

Also, if plaintiff. in an action against an 
executor or administrator, has obtained judg- 
ment, the usual execution runs de boris tes- 
tatoris; but, if the sheriff returns to sucha 
writ nulla bona tesiatoris nec propria, the 
plaintiff may, forthwith,upon this return, sue 
out an execution against the property or per- 
son of the executor or administrator, in as 
full a manner as in an action against him, 
sued in his own right. 
called a “devastavit.” 


Brown. 


DEVENERUNT. A writ, now obsolete, 
directed to the king's escheators when any 
of the king’s tenants ii eapite dies, and 
when his son and heir dies within age and 
in the king’s eustody, commanding the es- 
cheat, or that by the oaths of twelve good 
and lawful men they shall inquire what 
lands or tenr-ments by the death of the ten- 
ant have come to tle king. Dyer, 360; 
Termes de la Ley. 


Such a return is | 


withdraw. Usually spoken of an authority, 
power, property, or title; asthe estate is de 
vested. 

Devest is opposite to invest. As to in- 
vest signiiies to deliver the possession of 
anything to another, so to devest signifies to 
take ibaway. Jacob. 

It is sometimes written “divest” but “de- 
yest” has the support of the best authority. 
Burrill. 


DEVIATION. In insuranee. Vary- 
ing from the risks insured against, as de- 
ascribed in the policy, without necessity or 
just cause, after the risk has begun. 1 
Phil. Ins. § 977, et seq.; 1 Arn. Ins. 415, et 
seq. 

Any unnecessary or unexcused departure 
from the usual or genera] mode of carrying 
on the voyage insured, 15 Amer. Law Kev. 
108. 

Deviation is a departure from the course of 
the voyage insured, or an unreasonable delay 
in pursuing the voyage, or the commence- 
ment of an entirely different voyage. Civil 
Code Cal. § 2694. 

A deviation is a voluntary departure from or de- 
tay in the usual and regular course of a voyage in- 
sured, without necessity or reasonable cause. This 
discharges the insurer, from the time of the de- 
viation, 9 Mass. 436. 

in contracts. A change made in the 
progress of a work from the original terms 
or design or method agreed upon. 


DEVICE. Ina statute against gaming 
devices, this term is to be uniderstuod ag 
meaning something formed by design, a con- 
trivance, an invention. It is to be distin- 
guished from “substitute,” which means 


| something put in the place of another thing, 


or used instead of sumething else. 59 Ala. 


91. 


DEVIL ON THES WECK. An instru- 
ment of torture, formerly used to extort con- 
fessions, ete. It was made of several irons, 
which were fastened to the neck and legs, 
and wrenched together so as to break the 
back. Cowell. , 


DEVISABLE. Capable of being devised. 
l Pow. Dey. 165; 2 Bl. Comm, 373. 


DEVISAVIT VEL NON. In practice. 
The name of an issue sent out of a court 
of chancery, or one which exercises chancery 
jurisdiction, to a court of law, to try the va- 
lidity of a paper asserted and denied to bea 
will, to ascertain whether or not the testator 
did devise, or wlether or not that paper was 


G 


DEVISE 5 


his will. 7 Brown, Parl. Cas. 437; 2 Atk. 
424; 5 Pa. St. 21. 


DEVISEH. A gift of real property by will. 
Devise properly relates to the disposal of real 
property, not of personal. 21 Barb. 551, 561. 

Devise is properly applied to gifts of real prep- 
erty by will, but may ba extended to embrace per- 
sonal property, to execute the intention of the tes- 
tator. 6 Ired. Eq. 173. 

The words “devise,” “legacy,” and “bequest” 
may be applied indifferently to real or personal 
property, if such appears by the context of a will 
to have been the testator’sintention. 21 N. H. 514. 

Devises are contingent or vested; that is, 
after the death of the testator. Contingent, 
when the vesting of any estate in the devisee 
is made to depend upon some future event, 
in which cuse, if the event never occur, or 
until it does occur, no estate vests under the 
devise. But, when the future event is re- 
ferred to merely to determine the time at 
which the devisee shall come into the use of 
the estute, this does not hinder the vesting of 
the estate at the death of the testator. 1 
Jarm. Wills, ¢. 26. 

An exeeutory devise of lands is such a dispo- 
sition of them by will that thereby no estate 
vesis at the death of the devisor, but only on 
some future contingency. It differs from a 
remainder in three very material points: (1) 
That it needs not any particular estate to sup- 
port it; (2) that by it a fee-simple or other 
less estate may be limited after a fee-simple; 
(3) that by this means a remainder may be 
limited of a chattel interest, after a particu- 
lar estate for life created in the same. 2 Bl. 
Comm, 172, 

DEVISEE. The person to whom lands 
or other real property are devised or given 
by will. 1 Pow. Dev. ec. 7. 


DEVISOR. A giverof lands or real estate 
by will; the maker of a will of lands; a tes- 
tator. 

DEVOTR. Fr. Duty. It is used in the 
statute of 2 Rich. I. ¢. 3, in the sense of 
duties or customs. 


DEVOLUTION. In ecclesiastical law. 


The forfeiture of a right or power (as the 
right of presentation to a living) in conse- 


64 


quence of its non-user by the person holding | 


it, or of some other aet or omission on his 
part, and its resulting transfer to the person 
next entitled. 

DEVOLVE. “To devolve means to pass 
from a person dying to a person living; the 


etymology of the word shows its meaning.” | 


] MyIne & K. 648. 
BEVY. L. Fr. Dies; deceases. Bendloe, 5. 


BICAST 


DEXTANS. Lat. In Roman law. A 
division of the as, consisting of ten uncie; 
ten-twelfths, or five-sixths. 2 Bl. Comm. 
462, note m. 


DEXTRARIUS. One at the right hand 
of another. 


DEXTRAS DARE. To shake hands in 
token of friendship; or to give up oneself to 
the power of another person. 


DI COLONNA, Inimaritimelaw. The 
contract which takes place vetween the 
owner of a ship, the captain, and the mari- 
ners, who agree that the voyage shall be for 
the benelit of all, The term is used in the 
Italian law. Emerig. Mar. Loans, § 5. 


DI. ET FI. L. Lat. In old writs. An 
abbreviation of dilecto et jfidelt, (to his be- 
loved and faithful.) 


DIACONATE. The office of a deacon. 
DIACONUS, A deacon. 


DIAGNOSIS. A medical term, meaning 
the discovery of the source of a patient’s Il 
ness. 


DIALECTICS. That branch of logic 
which teaches the rules and modes of rea- 
soning. 


DIALLAGE. A rhetorical figure in 
which arguments are placed in varions points 
of view, and then turned to one point. 
Ene. Lond. 


DIALOGUS DE SCACCARIO. Dia- 
logue of or about the exchequer. An ancient 
treatise on the court of exchequer, attributed 
by some to Gervase of Tilbury, by others to 
Riehard Fitz Nigel, bishop of London in the 
reign of Richard I. It is quoled by Lord 
Coke under the name of Ockham. Orabb, 
Eng. Law, 710 


DIANWATIC. A logical reasoning in a 
progressive manner, proceeding from one 
subject to another, Ene. Lond. 


DIARIUM. Daily food, or as much as 
will suffice for the day. Du Cange. 


DIATIM. In old records. Daily; every 
| day; from day to day. Spelman. 


DICA. In old English law. A tally for 
accounts, by number of cuts, (taéllees,) 
marks, or notches. Cowell. See TALitia, 
TALLY. 


DICAST. An officer in ancient Greece 
answering in some respects to our juryman, 
but combining, on trials had before them, the 


DICE 


functions of both judge and jury. The di- 
casts sat together in numbers varying, ac- 
cording to the importance of the case, from 
one to five hundred. 


DICH. Small cubes of bone or ivory, 
marked with figures or devices on their sev- 
eral sides, used in playing certain games of 
chance. See 55 Ala. 198, 


DICTATE. To order or instruct what is 
to be said or written. To pronounce, word 
by word, what is meant te be written by an- 
other. 6 Mart. (N. 5.) 143. 


DICTATION. In Louisiana, this term 
is used in a technical sense, and means te 
pronounce orally what is destined to be writ- 
ten at the same time by another. It is used 
in reference to nuncupative wills. 16 La. 
Ann. 220, 


DICTATOR. A magistrate invested with 
unlimited power, and created in times of na- 
tional distress and peril. Among the Ro- 
mans, he continued in office for six months 
only, and had unlimited power and authority 
over both the property and lives of the citi- 
zeng. 


DICTORES. Arbitrators, 


DICTUM. In general. ‘A statement, 
remark, or observation. G@yrailis dictum; a 
gratuitous or voluntary representation; one 
which a party is not boundtomake. 2 Kent, 
Comm. 486. Sitmplea dictum; a mere as- 
sertion; an assertion without proof, LBract. 
fol. 320, 

The word is generally used ag an abbrevi- 
ated form of obiter dictum, “a remark by the 
way;” thatis, an observation or remark made 
by a judge in pronouncing an opinion upon 
a cause, concerning some rule, principle, or 
application of law, or the solution of a ques- 
tion suggested by the case at bar, but not 
necessarily involved in the case or essential 
to its determination; any stutement of the law 
enunciated by the court merely by way of 
Ulustration, argument, analogy, or sugges- 
tion. 

Dista are opinions of a judge which do not em- 
body the resolution or determination of the court, 
aod made without argument, or full consideration 
of the point, are not the professeé deliberais de- 
terminations of the judge himself. Obiter dicta 
are such cpinious uttered by the way, not npon the 
point or question pending, as if turning aside for 
the time from the main tep¥of the case to collat- 
eral subjects. 62.N. Y. 47, 58. 

In old English law. Dictum meant an 
arbitrament, or the award of arbitraters, 


305 


DIES AMORIS 


Tn French law. The report of a jndg- 
ment made by one of the judges who has 
given it. Poth. Proc. Civil, pt. 1,¢. 5, art. 2. 


DICTUM DE KENILWORTH. The 
edict or declaration of Kenilworth An 


| edict or award between King Henry IIT. and 


all the barons and others who had been in 
arms against him; and so called because if 
was made at Kenilworth Castle, in Warwick- 
shire, in the fifty-first year of his reign, con- 
taining a composition of five years’ rent tor 
the lands und estates of those who lad for- 
feited them in that rebellion. Blount; 2 
Reeve, Eng. Law, 62. 


DIE WITHOUT ISSUE, See Dyna 
Wirnout Issur. 


DIEI DICTIO. Lat. In Roman law. 
This name wag given to a notice promulgated 
by a magistrate of his intention to present an 
impeachment ayainst a citizen before the peo- 
ple, specifying the day appointed, the name 
of the accused, and the crime charged. 


DIEM CLAUSIT EXTREMUM. (Lat. 
He has closed his last day,—died.) A writ 
which formerly lay on the death of a tenant, 
in capite, to ascertain the lands of which he 
died seised, and reclaim them into the king's 
hands. Jt was directed to the king's es- 
cheators. Fitzh. Nat. Brev. 251, K; 2 Reeve, 
Eng. Law, 827. 

A wrib awarded out of the exchequer afier 
the death of a crown debtor, the sheriff be- 
ing commanded by it to ingttire by a jury 


! when and where the crown debtor died, and 


what chattels, debts, and lands he had at the 
time of his decease, and to take and seize 


them into the crown’s hands, 4 Steph. 
Comm. 47, 48. 
DIES. Lat. A day; days. Days for ap- 


pearance in court. Provisions or mainte- 
nance fora day. The king’s rents were an- 
ciently reserved by so many days’ provisions. 
Spelman; Cowell; Blount. 


DIES A QUO. (The day from which.) 
in the civil law. The day from which a 
transaction begins; the commencement of it; 
the eenclusion being the dies @d quem. 
Mackeld. Rom. Law, § 185. 


DIES AMORIS. A day of favor. The 
name given to the appearance day of the term 
on the fourth day, or quarto die post. It was 
the day given by the favor and indulgence 
of the court to the defendant for his appear- 
unce, When all parties appeared in court, and 


H 


K 


DIES CEDIT 3 


had their appearance recorded by the proper j 


Wharton. 


DIES CEDTT. The day begins; dies 
ventt, the day has come. Two expressions 
in Roman law which signify the vesting or 
fixing of an interest, and the interest becom- 
ing a present-One, Sandars’ Just. Inst. (Sth 
Kd.) 225, 232. 


offiver. 


DIES COMMUNES IN BANCO. Reg- | 


ular days for appearance in court; called, 
also, “common return-days.” 2 Reeve, Eng. 
Caw, 57. 


DIES DATUS. <A day given or allowed, 
(to a defendant in an action;) amounting toa 
coutinuanee. But the name was approprinte 
only to a continuance before a declaration 
filed; if afterwards allowed, it was called an 
“jmparlance.” 


DIES DATUS IN BANCO. A day 
given in the bench, (or court of common 
pleas.) Dract. fols. 2576, 361. A day given 
in bank, as distinguished from a day at 2st 
prius. Co. Litt. 135. 


DIES DATUS PARTIBUS. A day 
given to the parties to an action; an adjourn- 
mentor continuance. Crabb, Eng. Law, 217. 


DIES DATUS PRECEH PARTIUM. 
A day given on the prayer of the parties. 
Braet. fol. 358; Gilb. Comm. Pl. 41; 2 lKeeve, 
Eng. Law, 60. 


DIES DOMINICUS. The Lord’s day; 
Sunday. 


Dies dominicus non est juridicus. 
Sunday is not a court day, or day for judicial 
proceedings, or legal purposes. Co. Litt, 
135a; Noy, Max. 2; Wing. Max. 7, max. 5; 
Groom, Max. 21. 


DIES EXCRESCENS. In old English 
Jaw. The added or increasing day in leap 
year. Bract. fols. 359, 3590. , 


DIES FASTE. In Roman law. Days 
on which the courls were open, and justice 
could be legally administered; days on whieh 
it was lawful for ths pretor to pronounce 
(fart) the three words, “do,” “dico,” “ud- 
dico.” Mackeld. Rom. Law, § 39, und note; 
3 Bl. Comm. 424, note; Calvin. Hence 
called “trtverdbial days,” answering to the 
dies juridicé of the English law. 


DIES FERIATI. Lat. In the civil law. 
Holidays. Dig. 2, 12, 2, 9. 


DIES GRATIA. In old English prac- 
tice. A day of grace, courtesy, or favor. 


66 DIET 


Co. Litt. 1346. The quarto die post was 
sometimes 30 called. Id. 105. 


Dies inceptus pro compisto habetur. 
A day begun is held as complete. 


Dies incer'us pro conditione habetur. 
An uncertain day is held as 4 condition. 


DIES INTERCIST. In Roman law. 
Divided days; days on which the courts were 
open for a part of theday. Calvin. 


DIES LEGITIMUS. In the civil and 
old English law. A lawful or law day; a 
term day; a day of appearance. 


DIES MARCHIAM. Inold English law. 
The duy of meeting of English and Seotech, 
which was annually held on the oyarches or 
borders to ailjust their differences and pre- 
serve peace. 


DIES NEFASTI. In Roman law. 
Days on which the courts were closed, and 
it was unlawful to administer justice; an- 
swering to the dies now juridiel of the En- 
glish law. Mackeld. Rom. Law, § 39, note. 


DIES NON. An abbreviation of Dies 
non juridicus, (gq. v.) 


DIES NON JURIDICUS. In practice. 
A day not juridical; not a courtday. <A day 
on which courts are not open for business, 
such as Sundays and some holidays. 


DIES PACIS. (Lat. Day of peace.) 
The year was formerly divided into the days 
of the peace of the chureh and the days of the 
peace of the king, including in the two di- 
visions all the daysof the year. Crabb, Eng. 
Law, do. 

DIES SOLARIS. In old English law. 
A solar day, as distinguished from what was 


| called “dies lunaris,” (a lunar day;) both 


composing an artificial day. Bract, fol. 264. 
See Day. 


DIES SOLIS. In the civil and old En- 
glish law. Sunday, (literally, the day of the 
sun.) See Cod. 3, 12, 7. 


DIES UTILES. Juridical days; useful 
or available days. A term of the Roman 
law, used to designate those especial days o¢- 
curring within the limits of a prescribed 
peried of time upon which it was lawful, or 


| possible, to do a specific act. 


DIET. A general legislative assembly is 
sonietimes so called on the continent ot Eu- 
rope. 

In Seotch practice. 
court. 


The sitting of a 
An appearance day. A day fixed 


DIETA 


for the trial of 2 eriminal cause. <A criminal 


cause as prepared for trial. 


DIETA. A day’s journey; a day's work; 
a day's expenses. : 


DIETS OF COMPEHARANCH, In 
Scotch law. The days within which parties 
in civil apd eriminal prosecutions are cited 
toappear. Bell. 

DIEU ET MON DROIT. Fr. God and 
iny right, The motto of the royal arms of 
Engiand, tirst assumed by Richard I. 

DIEU SOW ACTH. L.Fr. Inoldlaw. 
God his act; God's act. An event beyond 
litiman foresight or control. Termes de la 
Ley. 

DIFPACERE. 
or defice. 


To destroy; to disfigure 


Diffiicile est ut unus homo vicem 
duorum sustineat. 4 Coke, 118. It is difti- 
enlt that one man should sustain the place of 
two. 


DIFFORCIARE. In old English law. 
To deny, or keep from one. Difforeiare rec- 
tum, to deny justice to any one, after having 
been required to de it. 


DIGAMA, or DIGAMY. Second mar- 
riage; marriage to a second wife after the 
death of the first, as “bigamy,” in law, is 
having two wives at once. Orizinally, a 
min who murried a widow, or married again 
after the death of his wife, was said to be 
guilty of bigamy. Co, Lilt, 406, note. 


DIGHST. A collection or compilation, 
embodying the chief matter of numerous 
books in one, disposed under proper heads or 
titles, and usually by an alphabetical arrange- 
ment, for facility in reference. 

As alegal term, “digest” is to ba distinguished 
from “abridgment.” The latter is a summary or 
epitome of the contents of asingle work, in which, 
as arule, the origiaal order or sequence of parts is 
preserved, and in which the principal labor of the 
compiler is in the matter of consolidation. A di- 
gest is wider in its scope; is made up of quote- 
tions or paraphrased passages; and has its own 
system of classification aad arrangement. An “in- 
dex” merely pvints out the places where particu- 
lar matters may be found, without purporting to 
give such matters im exvtenso. A “treatise” or 
“eommeniary” is not a compilation, but an orig- 
ine! composition, though it may include quotations 
and excerpts. 


A reference to the “Digest,” or “Dig.,” is 
always understood to designate the Digest 
{or Pandects) of the Justinian collection; 
that being the digest par eminence, and the 
authoritative compilation of the Roman law. 


367 


DILAPIDATION 


DIGESTA. Digests. One of the titles 
of the Pandects of Justinan. Inst. proem, 
§ 4. DBracton uses the singular, “ Diges- 
tum.” Bract. fol. 19. 


DIGHSTS. The ordinary name of the 
Pandects of Justinian, which ave now usual- 
ly ciled by the abbreviation “Dig.” instead 
of “Ff.,” as formerly. Sometimes cailed 
“Digest,” in the sinzular. 


DIGGING. Has been held as synony- 
mous with “excavating,” and not confined 
to the removal of earth. IN. Y. 316. 


DIGNITARY. In canon law. A per. 
son holding an ecclesiastical benefice or dig- 
nity, which gave him some pre-eminence 
above mere priests andcanonus. To this clasa 
exclusively belonged all bishops, deans, arch- 
deacons, ele.; but it now includes all the 
prebendaries and canons of the church. 
irande, 


DIGNITY. In Englishlaw. An honor; 
a title, station, or distinction of honor. Dig- 
nities are a species of incorporeal heredita- 
ments, in which a person may have a prop- 
erty or estate. 2 Bl. Comm. 37; i BL 
Comm. 596; 1 Crabb, Real Prop, 468, et seq. 


DIJUDICATION. Judicial decision or 
determination. 


DILACION, In Spanish law. A space 
of time granted te a party to a suit in which 
to answer a demand or produce evidence of 
a disputed fact. 


DILAPIDATION. A species of ecclesi- 
astical waste which occurs whenever the in- 
eumbent suiters any edifices of his ecclesius- 
tical living to go to ruin or decay. It is 
either voluntary, by pulling down, or per- 
missive, by suffering the church, parsonage- 
houses, and other buildings thereunto be- 
longing, to decay, And the remedy for 
either lies either in the spiritual court, where 
the canon law prevails, or in the courts of 
common Jaw. It is also held to be good 
cause of deprivation if the bishop, parson, or 
other evclesiastical person dilapidates build- 
ings or cuts down timber growing on the 
patrimony of the church, unless for necessa- 
ry repairs; and that a writ of prohibition 
will also lie against him in the common-law 
courts. 3 Bl, Comm. 91. 

The term is also used, in the law of land- 
lord and tenant, to signify the neglect of 
necessary repairs to a building, or suffering 
it to fall into a state of decay, or the puiling 
down of the building or any part of it, 


il 


DILATIONES, ETO. 


Dilationes in legesunt odiose. Delays 
in law are odions. Branch, Prine. 


DILATORY DEFENSE. In chancery 
practice. One the object of which is to 
dismiss, suspend, or obstruct the suit, with- 
out touching the merits, until the impedi- 
ment or obstacle insisted on shall be removed. 
3 Bi. Comm. 301, 302. 


DILATORY PLEAS. A class of de- 
fenses at common Jaw, founded on some mat- 
ter of fact not counected with the merits of 
the case, but such as might exist without 
impeaching the right of action itself. They 
were either pleas to the jurisdiction, show- 
ing that, by reason of some matter therein 
stated, the ease was not within the jurisdic- 
tion of the court; or pleas in suspension, 
showing some matter of temporary incapac- 
ity to proceed with the suit; or pleas in 
abatement, showing some matter for abate- 
ment or quashing the declaration. 3 Steph. 
Comm, 576. 


DILIGENCE. Prudence; vigilant ac- 
tivity; attentiveness; or care, of which there 
are infinite shades, from the slightest mo- 
mentary thought to the most vigilant 
anxiety; but the law recognizes only three 
degrees of diligence: (1) Common or ordi- 
nary, which men, in general, exertin respect 
of their own concerns; the slandard is neces- 
sarily varlable with respect to the facts, al- 
though it may be uniform with respect to the 
principle. (2) High or great, which is ex- 
traordinary diligence, or that which very pru- 
dent persons take of their own concerns. (3) 
Low or slight, which is that which persons 
of less than common prudence, or indeed of 
no prudence at all, take of their own con- 
cerns. 

The civil law is in perfect conformity with 
thecommon law. It lays down three degrees 
of diligence,—ordinary, (diligentia;) ex- 
traordinary, (cwactissima diligentia;) slight, 
(devissima diligentia.) Story, Bailm. 19. 

There may be a high degree of diligence, a com- 
mou degree of diligence, and a slight degree of 
diligence, with their corresponding degrees of neg- 
ligence, and these can be elearly enough defined for 
all practical purposes, and, with a view to the bus- 
iness of life, seem to be all that ara really neces- 
sary. Common or ordinary diligence is that de- 
gree of diligence which men in general exercisa 
in respect totheir own concerns; high or greatdil- 
igence is of course extraordinary diligence, or 
that which very prudent persons take of their 
own concerns; and low or slight diligence is that 
which persons of less than common prudence, or 
indeed of any prudence at all, take of their own 
eoncerns, Ordinary negligence is the want of 
ordinary diligence; slight, or less than ordinary, 


868 


DIMISSORY LETTERS 


negligence is the want of great diligence; and 
gross or more than ordinary negligence is the want 
of slight diligence. 5 Kan, 180. 

In Scotch law and practice. Trocess of 
law, by which persons, lands, or effects are 
seized in execution or in security for debt. 
Ersk. Inst. 2, 1], 1. Brande. Process for 
enforcing the altendance of witnesses, or bhe 
production of writings. Ersk. Inst. 4,1, 71. 


DILIGIATUS. (Fr. De lege ejecius, Lat.) 
Outlawed. 


DILLIGROUT. In old English law. 
Potlage formerly made for the king’s table on 
the coronation day. There was a tenure in 
serjeantry, by which lands were held of the 
king by the service ef finding this polltage at 
that solemnity. 


DIME. A silver coin of the United 
States, of the value of ten cents, or one-tenth 
of the dollar. 


DIMIDIA, DIMIDIUM, 
Half; a half; the half. 


DIMIDIETAS. 
thing. 


DIMINUTIO. Inthe civillaw. Diri- 
nution; a taking away; loss or deprivation. 
Diminutio capitis, loss of status or condition. 
See CAPITIs DIMINUTIO. 


DIMINUTION. Incompleteuess. <A 
word signifying that the record sent up from 
an inferior to a superior court for review is 
incomplete, or not fully certified. In such 
case the party may suggest a “diminution of 
the record,” which may be rectified by a cer- 
tiovart, 2 Tidd, Pr. 1109. 


DIMISI. In old conveyancing. I have 
demised. Dimist, cowcessi, et ad firmam tra- 
didi, have demised, granted, and to farm let. 
The usual words of operation in a lease. 2 
Bl. Comm. 317, 318. 


DIMISIT. In old conveyancing. 
has demised. See Draisr. 


DIMISSORIA LITTERZA. Inthecivil 
law. Letters dimissory or dismissory, com- 
monly called “apostles,” (que vulge apostoli 
dicuntur.) Dig. 50,16, 106. see AProsroLi, 
APOSTLES, 


DIMISSORY LETTERS. Where a 
eandidate for holy orders has a title of ordi- 
nation in one diocese in England, and is to be 
ordained in another, the bishop of the former 
diocese gives letters dimissory to the bishop 
of the latter to enable him io ordain the can- 
didate. Holthousa, 


DIMIDIUS. 


‘The moiety or half of a 


[He] 


DINARCHY 


DINARCHY. A government of two 
persons. 


DINERO. In Spanish law. Money. 
Dinero contada, money counted. White, New 
Recop. b. 2, tit. 18, c. 1, § 1, 

In Roman law. A civil division of the 
Roman empire, embracing several provinces. 
Calvin. 


DIOCHSAN. Belonging to a diocese; a 
bishop, as he stands related to hisown clergy 
or flock, 


DIOCESAN COURTS. In Englishlaw. 
The consistorial courts of each diocese, exer- 
cising general jurisdiction of ali matters aris- 
ing locally within their respective limits, with 
the exception of places subject to peculiar 
jurisdiction; deciding all matters of spiritual 
discipline,—suspending or depriving clergy- 
men,—and administering the other branches 
of the ecelestastical law. 2 Steph. Comm. 
672. 


DIOCESH. The territorial exfent of a 
bishop's jurisdiction. The circuit of every 
bishop’s jurisdiction. Co. Litt. 94; 1 Bi. 
Comm. 111. 


DIOICHIA. The district over which a 
bishop exercised his spiritual functions. 


DIPLOMA. In the civil law. A royal 
charter; letiers patent granted by a prince or 
sovereign. Calvin. 

An instrument given by colleges and scci- 
eties on the conferring of any degrees. 

A license granted to a physician, ete., to 
practice his art or profession, See 25 Wend. 
460. 


DIPLOMACY. Thescience which treats 
of the relations and interests of nations with 
nations. 

Negotiation or intercourse bet ween nations 
through their representatives. The rules, 
customs, and privileges of representatives at 
foreign courts, 


DIPLOMATIC AGENT. In interna- 
tional law. .A general name for all classes 
of persons charged with the negotiation, 


transaction, or superintendence of the diplo- | 


matic business of one nation at the court of 
another. See Rey. St. U.S. § 1674: 


DIPLOMATICS. The acience of di- 
plomas, or of ancient writings and decu- 
ments; the art of judging of ancient char- 
ters, publi¢ documents, diplomas, ete., and 
discriminating the true trom the false. 
Webster, 

AM, DICT. LAW—24 


869 


DIRECT EXAMINATION 
DIPSOMANTIA. In medical jJurtispro- 
dence. An irresistible impulse to indulge in 


intoxication, either by the use of.aleohol or of 
drugs such as opium. This mania or disease 
is classed as one of the minor forms of in- 
Sanity. 19 Neb. 614, 28 N. W. Rep. 273; 


‘1 Bish, Crim. Law, § 304. 


DIPSOMANTAC. <A person subject to 
dipsemania. One who has an irresistible de- 
sire ior aleoholic liquors. 


DIPTYCHA. Diptychs; tablets of wood, 
metal, or other substance, used among the 
Romans tor the purpose of writing, and 
folded like a book of two leaves. The dip- 
tychs of antiquity were especially employed 
for public registers. They were used in the 
Greek, and afterwards in the Roman, church, 
as registers of the names of those fer whom 
supplication was to be made, and are ranked 
among the earliest monastic records. Burrill. 


DIRECT. Immediate; by the shortest 
course; without circnity; operating by an 
immediate connection or relation, instead of 
operating through a medium; the opposite 


-| of indirect. 


In the usual or natural course or Jine; im- 
madiately upwards or downwards; as dis- 
tinguished from that whieh is out of the line, 
or on the side of it; the epposileof collateral, 

In the usual or regular course or order, as 
distinguished from that which diverts, inter- 
rupts, or opposes; the opposite of crass or 
contrary. 


DIRECT EVIDENCE. Evidence di- 
rectly proving any matter, as opposed to cir- 
cumstantial evidence, which is often callet 
“indirect.” It is usually conclusive, but, 
like other evidence, it is fallible, and that en 
various accounts. Itis not to ba confounded 
with primary evidence, as opposed to sec. 
ondary, although in point of fact it usuaily 
is primary. Grown. 


DIRECT EXAMINATION. In prac- 
tice. The first interrogation or examination 
ofa witness, on the merits, by the party on 
whose behalf he is calied. This is Lo be dis- 
tinguished from an examination im pais, or 
on the voir dive, whichis mere}y preliminary, 
and is had when the competency of the wit- 
ness is challenged; from the cross-examiina- 
tion, which is conducted by the adveras 
party; and from the redirect examination, 
which follows the cross-examination, and is 
had by the party who first examined the 
witness. 


M 


DIRECT INTEREST 


DIRECT INTEREST. A direct inter- 
ast, such as would render the interested par- 
ty incompetent to testify in regard to the 


tnatter, is an interest which is certain, and. 


not contingent or doubtful. A matter which 
is dependent alone on the successful prosecu- 
tion of an execution cannot be considered as 
uncertain, or otherwise than direct, in this 
sense. 1 Ala. 65. 


DIRECT INTERROGATORIES. On 
the taking of a deposition, where written in- 
terrogatories are framed, those put by the 
party calling the witness are named “direct 
interrogatories,” (corresponding to the ques- 
tions asked ona direct examination,) while 
those put by the adverse party are called 
*“eross-interrogatories.” 


DIRECT LINE. Property is said to de- 
scend or be inherited in the direct line when 
it passes in lineal succession; from ancestor 
to son, grandson, great-grandson, and so on. 


DIRECT TAX. A direct tax is one 
which is dewanded from the very persons who, 
it is intended or desired, should pay it. in- 
direct taxes are those which are demanded 
from one person,.in the expectation and in- 
tention that he shall indemnify himself at the 
expense of another. Mill, Pol. Econ. 

Taxes are divided into “direct,” under which 
designation would be included those which are as- 
sessed upon the property, person, business, in- 
come, etc., of those who are to pay them, and “in- 
direct,” or those which are levied on commodities 
before they reach the consumer, and are paid by 
those upon whom they ultimately fall, not as taxes, 
but as part of the market price of the commodity. 
Cooley, Tax’n, 6. 

Historical evidence shows that personal proper- 
ty, contracts, occupations, and the like, have never 
been regarded us the subjects of direct tax. The 
purase is understood to be limited to taxes on land 
aud its appurtenances, and on polls. 8 Wall. 533. 


DIRECTION. 1. The act of gaverning; 
management; superintendence. Also the 
body of persons (called “directors”) who are 
charged with the management and adminis- 
tration of a corporation or institution. 

2. The charge or instruction given by the 
eourt to a jury upon a point of law arising 
or involved in the case, to be by them ap- 
plied to the facts in evidence. 

3. The clause of a bill in equity containing 
the address of the bill to the court, 


DIRECTOR OF THE MINT. An of- 
fiver having the control, management, and 
superintendence of the United states mint 
and its branches. He is appointed by the 
president, by and with the advice and con- 
sent of the senate. 


570 


DISABILITY 


DIRECTORS. Persons appointed or 
elected according to law, authorized to man- 
age and direct the affairs of a corporation or 
company. The whole of the directors col- 
lectively form the board of directors, Whar- 
ton. 


DIRECTORY. A provision in astatute, 
rule of procedure, or the like, is said to be 
directory when it is to be considered as a 
mere direction or instruction of no obliga- 
tory force, and involving no invalidating 
consequence for its disregard, a8 opposed to 
an imperative or mandatory provision, which 
must be followed. The general rule is that 
the prescriptions of a statute relating to the 
performance of a public duty are so far direct- 
ory that, though neglect of them may be 
punishable, yet it does nob affect the validity 
of the acts dune under them, as in the case of 
a statute requiring an officer to prepare and 
deliver a document to another officer on or 
before a certain day. Maxw. Interp. St. 
330, et seq. 


DIRECTORY TRUST. Where, by the 
terms of a trust, the fund is directed to be 
vested in a particular manner till the period 
arrives at which it is to be appropriated, 
this is called a “directory trust.” It is dis- 
tinguished from a discretionary trust, in 
which the trustee has a discretion as to the 
management of the fund. 10 Yerg. 272, 


DIRIBITORES. In Roman law. Of- 
ficers who distributed ballots to the people, 
to be used in voting. Tayl. Civil Law, 192. 


DIRIMENT IMPEDIMENTS. In can- 


on law. Absolute Lars to marriage, which. 


would make it null ab initio. 


DISABILITY. The want of legal abil- 
ity or capacity to exercise legal rights, either 
special or ordinary, or to do certain acts with. 
proper legal effect, or to enjoy certain privi- 
leges or powers of free action, 

At the present day, disability is generally used 
to indicate an incapacity for the full enjoyment of 
ordinary legal rights; thus married women, per- 
sons under age, insane persons, and felons convict 
are said to be under disability. Sometimes the 
term is used in a more limited senses, as when it 
signifies an impediment to marriage, or the re- 
straints placed upon clergymen by reason of their 
spiritual avoecations. Mozley & Whitley. 

Disability is either general or special; the 
former when it incapacitates the person for 
the performance of all legal acts of a general 
class, or giving to them their ordinary legal 


effect; the latter when itdebars him from one: 


specific act. 


DISABILITY 


Disability is also either personel or abso- 
fufe; the former where it attaches to the par- 
ticnlar person, and arises out of his status, 
his previous act, ar his natural or juridical 
incapacity; the latter where it originates with 
a particular person, but extends also to his 
descendants or successors. , 

Considered with special reference to the ca- 
pacity to contract a marriage, disability is ei- 
ther canonical or civil; a disability of the 
former class makes the murriage voidable 
only, while the latter, in general, avoids it 
entirely. 


DISABLE. In its ordinary sense, to dis- 
able is to cause a disability, (q. v.) 

In the old language of pleading, to disa- 
ble is to take advantage of one’s own or an- 
other’s disability. Thus, it is “an express 
maxim of the common law that the party 
shall not disable himself;” but “this disabil- 
ity to disable himself * * * is person- 
al.” 4 Coke, 1230, 


DISABLING STATUTES. These are 
acts of parliament, restraining and regulat- 
ing the exercise of a right or the power of 
alienation; the term is specially applied to 
1 Eliz. c. 19, and similar acts restraining the 
power of ecclesiastical corporations to make 
leases. 


DISADVOCARKH. . To deny a thing. 


DISAFFIRM. To repudiate; to ravoke 
a consent once given; to recall an affirmance. 
To rafuse one’s subsequent sanction to a for- 
mer act; to disclaim the intention of being 
bound by an antecedent transaction. 


DISAFFIRMANCE., The repudiation of 
a former transaction. The refusal by one 
who has the right to refuse, (as in the case 
of a voidable contract,) to abide by his for- 
mer acts, or accept the legal consequences of 
the same. It may either be “express” (in 
words) or “implied” from acts expressing 
the intention of the partly to disregard the 
obligations of the contract. 


DISAFFCREST. To restore to their for- 
moer condition lands which have been turned 
into forests. To remove from the operation 
of the forest laws. 2 Bl. Comm. 416. 


DISAGREEMENT. The refusal by a 
grantee, lessee, etc., toacceptan estate, lease, 
ete., made to him; the annulling of a thing 
that had essence before. No estafie can be 
vested in a person against his will. Conse- 
quently no one can become a grantee, ete., 
without bis agreement. 


371 


| 


| grant, etc., inoperative. 


DISCHARGE 


such an agreement until the contrary is 
shown, but his disagreement renders the 
Wharton. 


DISALT. To disable a person. 


DISAPPROPRIATION. This is where 
the appropriation of a benefice is severed, 
either by the patron presenting a clerk or by 
the corporation which has the appropriation 
being dissolved. 1 Bl. Comm. 385. 


DISAVOW. Torepudiate the unauthor- 
ized acts of an agent; to deny the authority 
by which he assumed to act. 


DISBAR. In England, to deprive a bar- 
rister permanently of the privileges of his 
position; itis analogous to striking an attor- 
ney off the rolls, In Ameriea, the word de- 
seribes the act of a court in withdrawing 
from an attorney the right to practise at its 
bar. 


BISBOCATIO. In old English law. A 
conversion of wood grounds into arable or 
pasture; an assarting. Cowell. See AssaRT. 


DISBURSEMENTS. Money expended 
by an executor, guardian, trustee, ete., for 
the benefit of the estate in his hands, or in 
connection with its administration. 

The term is also used under the codes of 
civil procedure, to designate the expenditures 
necessarily made by a party in the progress 
of an action, aside from the fees of officers 
and cour costs, which are allowed, eo nom- 
ine, together with costs. 


DISCARCARE. In old English law. 
To discharge, to unload; as a vessel. Car- 
eare et discarcare; to charge and discharge; 
to load and unload, Cowell. 


DISCARGARE, 
To discharge or unload, as a wagon. 
man. 


DISCHPTIO CAUSA. In Roman law. 
The argument of a cause by the counsel on 
both sides. Calvin. 


DISCHARGE. The opposite of charge, 
hence te release; liberate; annul; unburden; 
disincumber. 


In old European law. 
Spel- 


In the law of contracts. To cancel or 
unioose the obligation of a contract; to make 
an agreement or contract null and inopera- 
tive. As anoun, the word means the act or 
instrument by which the binding force of 
a contract is terminated, irrespective of 
whether the contract is carried out to the 


The law implies ; full extent contemplated (in which case the 


iW 


DISCHARGE 


discharge is the result of performance) or is 
broken oif before complete execution. 

Discharge isa generic torm; its principal species 
are rescission, release, accord and satisfaction, per- 
formauce, judgment, composition, bankruptcy, 
merger, (g.v.) Leake, Cont. 413. 

As applied to demands, claims, rights of 
action, incumbrances, etc., to discharge the 
debt or claim is to extinguish it, to annul its 
obligatory force, to satisfy it. And here 
also the term is generic; thus a debt, a mort- 
gage, alegacy, may bedischarged by payment 
or performance, or by any act short of that, 
lawful in itself, which the creditor accepts as 
sufficient. Todischarge a person is to liberate 
him trom the binding force of an obligation, 
debt, or claim. 

Discharge by operation of law is where the dis- 
charge takes place, whether it was intended by the 
parties or not; thus, if a creditor appoints his 
debtor his executor, the debt is discharged by 
operation of law, because the executor canuot have 
an action against himself. Co. Litt. 264), note 1; 
Williams, Ex'rs, 1216; Chit. Cont. 714. 

In civil practice, To discharge a rule, 
#n order, an injunction, a certificate, process 
of execution, or in general any proceeding in 
a court, is to cancel or annul it, or to revoke 
it, or to refuse to confirm its original provis- 
ional force. 

To discharge a jury is to relieve them from 
any further consideration of a cause. This 
is done when the continuance of the trial is, 
by any cause, rendered impossible; also when 
the jury, after deliberation, cannot agree on 
a verdict. 


In equity practice. In the process of 
accounting before a master in chancery, the 
discharge igs a statement of expenses and 
eounter-claims brought in and filed, by way 
of set-off, by the accounting defendant; 
which follows the charge in order. 


In criminal practice. The act by which 
a person inconfinement, held on an accusation 
of some crime or misdemeanor, is set at liber- 
ty. The writing containing the order for 
his being so set at liberty is also called a “dis- 
charge.” 


In bankruptey practice. The discharge 
of the bankrupt is the step which regularly 
tollows the adjndication of bankruptey and 
the administration of his estate. By it he is 
released from the obligation of all his debts 
which were or might be proved in the pro- 
ceedings, so that they are no longer a charge 
upon him, and so that he may thereafter en- 
gage in business and acquire property with- 
out its being liable for the satisfaction of 
such former debts. 


ai2 


DISCONTINUANCE 


In maritime law. The unlading or un- 
livery of a cargo from a vessel. Story, J., 2 
Sum. 589, 600. 


DISCLAIMER. The repudiation or re 
nunciation of a right or claim vested in a per- 
son or which he hail formerly alleged to ba 
his. The refusal, waiver, or denial of anes- 
fate or right offered toa person. ‘The disa- 
vowal, denial, or renunciation of an interest, 
right, or property imputed to a person or al- 
leged to be his. Also the declaration, or the 
instrument, by which such disclaimer is pul- 
lished. 

Of estates. The act by which a party re- 
fuses to accept an estate which haz been con- 
yeyed to him. Thus, a trustce is said to dis- 
claim who releases to his fellow-trustees his 
estate, and relieves himself of the trust. 1 
Hil. Real Prop. 354; 13 Conn. 83. 

A renunciation or a denial by a tenant of 
his landlord’s title, either by refusing to pay 
rent, denying any obligation to pay, or by 
setting up a title in himself or a third person, 
and this is a distinct ground of forfeiture of 
the lease or other tenancy, whether of land 
or tithe. See 16 Ch. Diy. 730. 

In pleading. A renunciation by the de- 
fendant of all claim to the subject of the de- 
mand made by the plaintiff's bill. Coop. Eq. 
Pi. 309; Mitf. Eq. Pl. 318. 

In patent law. When thetitleand spec- 
ifications of a patent do not agree, or when 
part of that which it covers is not strictly 
patentable, because neither new nor useful, 
the patentee is empowered, with leave of the 
court, to enter a disclaimer of any part of 
either the title or the specification, and the 
disclaimer is then deemed to be part of the 
letters patent or specification, 30 as to render 
them valid for the future. Johns. Pat. 151. 


DISCLAMATION. InScotchlaw. Dis- 
avowal of tenure; denial that one holds lands 
of another. Bell. 


DISCOMMON. To deprive commona- 
ble lands of their commonable quality, by in 
closing and appropriating or improving them. 


DISCONTINUANCE. In practice. 
The termination of an action, in consequence 
of the plaintiff's omitting to continue the pro- 
cess or proceedings by proper enbries on the 
record. 3 BI. Comm. 296; 1 Tidd, Pr. 678; 
2 Arch. Pr. K. B. 293. 


In practice, a discontinuance is a chasm or gap 
left by neglecting to enter a continuance, By our 
practice, a neglect to enter a continuance, even ia 
a defaulted action, by no means puts an end to it: 


DISCONTINUANCE 


ang such actions may always be brought forward. 
56 N, H, 416. 

The cessation of the proceedings in an 
action where the plaintiff voluntarily puts an 
end to it, either by giving notice in writing 
to the defendant before any step has been 
taken in the action subsequent to the answer, 


or at any other time by order of the court or | 


a judge. 

In practice, discontinuance and dismissal import 
the same thing, viz., that the cause is sent out of 
court. 48 Mo. 235. 

In pleading. That technical interrup- 
tion of the proceedings in an action whieh 
follows where a defendant does not answer 
the whole of the plaintiff’s decluration, and 
the plaintiff omits to take judgment for the 
part unanswered. Steph. Pi. 216, 217. 


DISCONTINUANCE OF AN 
ESFATE. The termination or suspension 
of an estate-tail, in consequence of the act 
of the tenant in tail, in conveying a larger 
estate in the land than he was by law en- 
titled tode, 2 Bl. Comm. 275; 3 BL. Comm. 
171. An alienation made or suffered by 
tenant in tail, or by any that is seised in auter 
droit, whereby the issue in tail, or the heir 
or successor, or those In reversion or re- 
mainder, are driven to their action, and can- 
not enter. Co. Litt. 625a. The cesser of a 
Seisin under an estate, and the acquisition of 
a seisin under a new ani necessarily a wrong- 
ful title. Prest. Merg. c. ii. 


Discontinuare nihil aliud significat 
quam intermittere, desuescers, inter- 
rumpere. Co. Litt. 325. To discontinue 
signifies nothing else than to intermit, to 
disuse, to interrupt. 


DISCONTINUOUS HASEMENT. 
One the enjoyment of which can be had only 
by the interference of man, as rights of way, 
or a right to draw water; as distinguished 
from a continuous easement, which is one 
the enjoyment of which is or may be con- 
tinual, without the necessity of any actual 
interference by man, as a water-spout, ora 
vight of light or air, Washb, Easem. 13; 
Gale, Easem. 16; 21 N. Y. 505; 60 Mich. 252, 
27 N. W. Rep. 509. This distinction is de- 
rived from the French law. See Code Civil, 
art, 688. 


DISCONTINUOUS SERVITUDE. See 
DisCONTINUOUS EASEMENT, 


DISCONVENABLE. L. Fr. Improper; 
unfit. Kelham, 


873 


DISCOVERY 


DISCOUNT. In a general sense. An 
allowance or deduction made from a gross 
sum on any account whatever. In a more 
limited and technical sense. The taking of 
interest in advance. 

By the language of the commercial world 
and the settled practice of bunks, a discount 
by a bank means a drawback or deduction 
made upon its advances or loans of money, 
upon negotiable paper or other evidences of 
debt payable ata tutureday, which are trans- 


| ferred to the bank, 8 Wheat, 338; 15 Ohio 
St. 87. 


Although the discounting of notes or bills, in its 
most comprehensive sense, may mean londing 
money and taking notes in payment, yet, in its 
more ordinary sensa, the discounting of notes or 
bills means advancing a consideration for a bill or 
note, deducting or discounting the interest which 
will accrue for the time the note has to run. 13 
Conn. 243, 

Discounting by 2 bank means lending money up- 
on a note, and deducting the interest or premium 
in advance. ti? N. Y. 507, 515; 48 Mo. 189. 

Tho ordinary meaning of the term “to discount” 
is to take interest in advance, and in banking isa 
mode of loaning money. It is the advance of 
money not due till some future period, less the in- 
terest which would be due thereon when payables. 
42 Md. 592. 

Discount, as we haye seen, is the difference be- 
tween the price and the amount of the debt, the 
evidence of whichis transferred. That difference 
represents interest charged, being at ile same 
rate, according to which the price paid, if invested 
until the maturity of the debt, will just produce 
its amount. 104 U. B. 278. 

Discounting a note and buying it are not identic- 
al in meaning, the latter expression being used to 
dencte the transaciion when the seller does not in- 
dorse the note, and is not accountable for it. 23 
Minn, 206. ; 


In practice. A set-off or defalcation in 


an aetion. Vin. Abr. “Discount.” Butsee 
1 Mete. (Ky.) 597. 


DISCOUNT BROKER. A bill broker; 
one who discounts bills of exchange and 
promissory notes, and advances money on 
securities. 


DISCOVERT. Not married; not subject 
to the disabilities of coverture. It applies 
equally to a maid and a widow. 


DISCOVERY. Inyention; finding out. 
The finding of an island or country not pre- 
viously known to geographers. 

In patent law. The finding out some 
substance, mechanical device, improvement, 
or application, not previously known. 


Discovery, a5 used in the patent laws, depends 
upon invention. Hvery invention may,in a cer 
tain sense, embrace more or less of discovery, for 
it must always include something that is new; but 


DISCOVERY 


it by no means follows that every discovery is an 
Invention. 5 Blatchf. 121. 

Also used of the disclosure by a bankrupt 
of his property for the benefit of creditors. 


In practice. The disclosure by the de- 
fendani of facts, titles, doguments, or other 
things which are in his exclusive knowledge 
or possession, and which are necessary to the 
party seeking the discovery as a part of a 
cause or action pending or to be brought in 
another court, or as evidence of his rights or 
title in such proceeding. 


DISCOVERY, BILL OF. In equity 
pleading. A bill for the diseovery of facts 
resting in the knowledge of the defendant, or 
of deeds or writings, or other things in his 
custody or power; but seeking no relief in 
consequence of the discovery, though it may 


pray for a stay of proceedings at law fill the | 
Story, Eq. Pl. §§ 31], | 


diseovery is made. 
$12, and notes; Mitf. Eq. Pl. 53. 


DISCREDIT. To destroy or impair the 
credibility of a person; to impeach; to lessen 
the degree of credif to be accorded to a wit- 
ness or document, as by impugning the ve- 
racily of the one or the genuineness of the 
other; to disparage or weaken the reliance 
upon the testimony of a witness, or upon 
decumentary evidence, by any means what- 
over. 


DISCREPANCY, A difference between 
two things which ought to be identical, as be- 
tween one writing and another; a variance, 


(q: B.) 


Diseretio est discernere per legem 
quid sit justum. 10 Coke, 140. Discretion 
is to know through law what is just. 


DISCRETION. A liberty or privilege 
‘allowed to a judge, within the confines of 
right and justice, bnt independent of narrow 
and unbending rules of positive law, to de- 
cide and act in accordance with what is fair, 
equitable, and wholesome, as determined up- 
on the peculiar circumstances of the ease, and 
a8 discerned by his personal wisdom and ex- 
perience, guided by the spirit, principles, and 
analogies of the law. 


When applied to publie functionaries, discretion 
means a power or right conferred upon them by 
law of acting officially in certain cirenmstances, 
according to the dictates of their own judgment 


and conscience, uncontrolled by the judgment or | 


conscience of others. This discretion undoubtedly 
is tosome extent regulated by usage, or, if the term 
is preferred, by fixed principles. But by this is to 
be understood nothing more than that the same 
eourt cannot, consistently with its own dignity, 
and with its character and duty of administering 


B74 


DISFRANCHISE 


Impartial justice, decide in different waye twa 
cases in every respect exactly alike. The question 
of fact whether the two cases are alike in every 
color, circumstance, and feature is of necessity to 
be submitted to the judgment of some tribunal. 
18 Wend. 79, 99. 

Lord Ccke defines judicial discretion to be “ dis- 
eernere per lege quid sit justum,” to see what 
would be just according to the laws in the prem- 
ises. It does not mean a wild self-willfulness, 
which may prompt to any and every act: but this 
judicial discretion is guided by the lew, (ses what 
the law declares upon a certain statement of facia, 
and then decide in accordance with the law,} so ag 
to do substantial equity and justice. 18 Mo. 548, 

True, itis a matter of discretion; but then the 
discretion is not willful or arbitrary, but legal. 
And, although its exercise be not purely a matter 
of law, yet it “dwoives a matier of law or legal in- 
ference,” in the language of the Code, and an ap- 
peal willlie. ON. C. L171, 

In eriminal law and the law of torts, it 
means the capacity to distinguish between 
what is right and wrong, lawful or unlawful, 
wise or foolish, sutiiciently to render one 


amenable and responsible for his acts. 


DISCRETIONARY TRUSTS. Suchas 
are not marked out on fixed lines, but ailow 
a certain amount of discretion in their exer- 
cise. Those which eannot be duly admin- 
istered without the application of a certain 
degree of prudence and judgment. 


DISCUSSION. In the civillaw <A 
proceeding, at the instance of a surety, by 
whieh the creditor is obliged to exhaust the 
property of the principal debtor, towards the 
satislaction of the debt, before having re- 
course to the surety; and this right of the 
surety is termed the “benefit of discussion.” 
Civil Code La. art. 3045, et seq. 

In Seotch law. The ranking of the 
proper order in which heirs are liable to sat- 
isty the debts of the decensed. Bell. 


DISHASE. In construing a policy of life 
insurance, it is generally true that, before 
any temporary ailment can be ealled a “dis- 
ease,” it must be such as to indicate a vice 
in the constitution, or beso serious us to have 
some bearing upon general health and the 
continuance of life, or such as, according te 
common understanding, would be called a 
“disease.” 70 N. Y.77. 


DISENTAILING DEED. In English 
law. An enrolled assurance barring an ens 
tail, pursuant to 3&4 Wm. 1V.¢. 74. 


DISFRANCHISH. To deprive of the 
rights and privileges of a free citizen; to de- 
prive of chartered rights and immunities; ta 
deprive of any franchise, as of the right of. 
voting in elections, ete. Webster. 


DISFRANCHISEMENT 


DISFRANCHISEMENT. The act of } 
disfranchising. ‘The act of depriving a mem- 
ber of a corporation of his right as such, by 
expulsion. 1 Bouv. Inst. no. 192. 

lt differs from amotion, (g. v.) which is 
applicable to the removal of an officer from 
office, leaving him his rights as a member. 
Willecock, Mun. Corp. no, 708; Ang. & A. 
Corp. 237, 


DISGAVEL. In English law. To de 
prive lands of that principal quality of gavel- 
kind tenure by which they descend equally 
among all the sons of the tenant. 2 Wood. 
Lect. 76; 2 Bl. Comm. 8d. 


DISGRACH. Iygnominy; shame; dishon- 
or. No witness is required to disgrace him- 


13 How. State Tr. 17, 384. 


DISGRADING. In old English law, 
The depriving of an order or dignity. 


DISGUISE. A counterfeit habit; a dress 
Intended to conceal the person who wears it. 
Webster. 

Anything worn upon the person with the 
intention of so altering the Wearer’s appear- 
ance that he shall not be recognized by those 
familiar with him, or that he shall be taken 
for another person, 


A person lying in ambush, or concealed behind 
bushes, is not in “disguise,” within the meaning 
of a statute declaring the county liable in damages 
to the next of kin of any one murdered by persons 
in disguise. 46 Ala. 118, 142. 


DISHERISON. Disinheritance; depriv- 
ing one of an inheritance. Obsolete, 


DISHOWOR. In mercantile law and 
usage. To refuse or decline lo accept a bill 
of exchange, or to refuse or neglect to pay a 
bill or note at maturity. 

A negotiable instrument is dishonored 
when it is either not paid or nut accepted, ac. 
cording to its tenor, on presentment for that 
purpose, or without presentment, where that 
is excused. Civil Code Cal. § 3141. 


DISINCARCERATE, Toset at liberty, 
to free frum prison, 


DISINHERISON. In thecivillaw. The 
act of depriving a forced heir of the inherit- 
ance which the law gives him. 


DISINHERITANCE. The act by which 
the owner of an estale deprives a person of 
the right to inherit the same, who would 
otherwise be his heir, 


DISINTERESTED. Not concerned, in 
respect to possivle gain or loss, in the result 
of the pending proceeding. 


self. 


375 


DISPARAGATIO 


DISINTERESTED WITNESS. One 
who has no interest in the cause or matter in 
issue, and who is lawfully competent to tes- 
tify. 


DISJUNCTIM. Lat. In the civil law. 
Separately; severally. The opposite of con- 
junctim, (qg. v.) Inst, 2, 20, 8. 


DISJUNCTIVE ALLEGATION. A 
statement in a pleading or indictment which 
expresses or charges a thing alternatively, 
wilh the conjunction “or;” for instance, an 
averment that defendant “murdered, or 
caused to be murdered,” ete., would be of 
this character. 

DISJUNCTIVE TERM, One which is 
placed between two contraries, by the affirm- 
ing of one of which the other is taken away; 
it is usually expressed by the word “or.” 


DISMES. Tenths; tithes, (¢. v.) The 
original form of “dime,” the name of tho 
American coin. 


DISMISS. To send away; to discharge; 
to cause to be removed. To dismiss an ac- 
tion or suit is to send it out of court without 
any further consideration or hearing. 


DISMORTGAGE. 
mortgage, 


To redeem from 


DISORDER. Turbulent or riotous be- 
havior; immoral or indecent conduct. The 
breach of the publie decorum and morality. 


DISORDERLY HOUSE. In criminal 
law. <A house the inmates of which behave 
80 badly as to become anuisance to the neigh- 
borhooud. It has a wide meaning, and in- 
cludes bawdy houses, common gaming 
houses, and places of a like character. 1 
Bish. Crim. Law, § 1106; 2 Cranch, C. C. 673. 


DISORDERLY PERSONS. Such as 
are dangerous or hurtful to the public peace 
and welfare by reason of their misconduet or 
vicious habits, and are therefore amenable to 
police regulation, The phrase is chiefly used 
in statutes, and the seope of the term de- 
pends on logal regulations. See 4 Bi. Comm. 
169. 


DISPARAGARE. In old English law, 
To bring together those that are unequal, 
(dispares conferre;) to connect in an indec- 
oreus and unworthy manner; to connect in 
marriage those that are unequal in bleod and 
parentage. 


DISPARAGATIO. In old English taw. 
Disparagement. Heredes maritentur atsque 


DISPARAGATION 


disparagatione, heirs shall be married with- 
out disparagement. Magna Charta, (9 Hen. 
BE ices 


DISPARAGATION. IL. Fr. Dispar- 
agement; the matching an heir, ete., in mar- 
riage, under his or her degree or condition, 
or aguinst the rules of decency. Kelham. 


DISPARAGE. To connect unequally; 
to match unsuitably. 


DISPARAGEMENT. 
law. 
with some person or thing of inferior rank 
or excellence, 

Marriage without disparagement was mar- 
riage to one of suitable rank and character. 
2 Bi. Comm. 70; Co. Litt. 826. 


DISPARAGIUM. In old Scotch law. 
Inequality in blood, honor, dignity, or other- 
wise. Skene de Verb. Sign. 


In old English 


Disparata non debent jungi. Things 
unlike ought not to be joined. Jenk. Cent. 
24, marg. 


DISPARK. To dissolve a park. Cro, 
Car.59,. To convert it into ordinary ground. 


DISPATCH or DESPATCH. A mes- 
sage, letter, or orller sent with speed on af- 
fairs of state; a telegraphic messige. 


DISPAUPER. When a person, by rea- 
son of his poverty, is admitted to sue in for- 
ma pauperis, and afterwards, before the 
suit be ended, acquires any lands, or person- 
al estate, or is guilty of anything whereby he 
is liable to have this privilege taken from 
him, then le loses the right to sue én yorma 
pauperis, and is said to be dispaupered. 
Wharton. 


Dispensatio est mali prohibiti provida 
relaxatio, utilitate seu necessitate pen- 
sata; et est de jure domino regi concessa, 
propter impossibilitatem previdendi de 
omnibus particularibus. <A dispensation 
is the provident relaxation of a malum pro- 
Aibitum weighed from utility or necessity; 
and it is conceded by law to the king on ac- 
count of the impossibility of foreknowledge 
concerning all particulars. 10 Coke, 88. 


Dispensatio est vulnus, quod vulnerat 
jus commune. A dispensiution is a wound, 
which wounds common law. Day. Ir. Kk. B. 
69. 


DISPENSATION. An exemption from 


some laws; a permission to do something | 
forbidden; an allowance to omit something | 


376 


An injury by union or comparison | 


DISPUTABLE PRESUMPTION 


conimanded; the canonistic pame for a 
license. Wharton, 

A relaxation of law for the benefit or advantage 
of an individual. In the United States, no power 
exists, except iu the legislature, to dispense with 
jaw; and then it is not 30 much a dispensation as 
a change of the law. Bouvier, 


DISPERSONARE. To scandalize or dis- 
parage. Blount. 


DISPLACE. This term, as used in ship- 
ping articles, ineans “disrate,” and does not 
import authority of the master to discharge a 
second mate, notwithstanding a usage in the 
whaling trade never to disrate an officer toa 
seaman. 103 Mass. 68. 


DISPONE, In Seoteh law. To grant or 
convey. <A technical werd essential to tlie 
conveyance of heritable property, and for 
which no equivalent is accepted, however 
clear may be the meaning of the party. 
Paters. Comp. 


DISPOSE. Toalienate or direct the own- 
ership of property, as disposition by will. 42 
N.Y. 79. Used also of the determination of 
suits. 13 Wall. 664. Called a word of large 
extent. Freem. 177. 


DISPOSING CAPACITY OR MIND. 
These are alternative or synonymous phrases 
in the law of wills for “sound mind,” and 
“testamentary capacity,” (q. v.) 


DISPOSITION, InScotch law. A deed 
of alienation by which a right to property is 
conveyed. Bell. 


DISPOSITIVE FACTS. Such as pro- 
duce or bring about the origination, transfer, 
or extinclion of rights. They are either ¢n- 
vestilive, those by means of whieh a right 
comes into existence, divestitive, those 
through which it terminates, or transiative, 
those through whieh it passes from one per- 
son to another. 


DISPOSSESSION. Ouster; a wrong 
that carries with it the amotion of posses- 
sion. An act whereby the wrong-doer geta 
the actual occupation of the land or heredita- 
ment. It includes abatement, intrusion, dis- 
seisin, discontinuance, deforcement. 3 BL 
Comm, 167. 


DISPUNISHABLE. In old English law. 
Not answerable. Co. Litt. 276.53. 1 Steph. 
Comm. 245. Not punishable, “This mur- 
der is dispunishable.” 1 Leon. 270. 


DISPUTABLE PRESUMPTION. A 
presumption of law, which may be rebutted 
or disproved. Best, Pres. § 25, 


DISPUTATIO FORI 


DISPUTATIO FORI. In the eivillaw. 
Discussion or argument before a court. 
Mackeld. Rom. Law, § 38; Dig. IL, 2, 2, 5. 


DISRATIONARE, or DIRATIONA- 
RE. To justify; to clear one’s self of a 


377 


fault; to traverse an indictment; to disprove. | 


Ene. Lond. 


In old Seoteh law. 
Skene. 


DISSASINA. Dis- 


seisin; dispussession, 


DISSECTION. Theanatomical examina- 
tion of a dead body. 


DISSEISE. Todispossess; te deprive. 


DISSHISHE. One whois wrongfully put 
out of possession of hislands; one who is dis- 
seised. 


DISSEISIN. Dispossession; a depriva- 
tion of possession; a privution of seisin; a 
usurpation of the right of seisin and posses- 
sion, and an exercise of such powers and 
privileges of ownership as to keep out or dis- 
place him to whom these rightfully telong. 
3 Washb, Real Prop. 125. 

It isa wrongful putting out of him that is 
seised of the freehold, not, as in abatement 
ov intrusion, a wrongful entry, where the 
possession was vacant, but an attack upon 
him who is in actual possession, and turning 
him out. Itis an ouster from a freeliold in 
deed, as abatement and intrusion are ousters 
inlaw. 38 Steph. Comm. 3x6. 

When one man invades the possession of another, 
and by force or surprise turns him out of the oecn- 
pation of his lands, this is termed a “disscisin,” 
being a deprivation of that actual seisin or corpo- 
ral possession of the freehold which the tenant be- 
fore enjuyed. In other words, a disseisin is said 
to be when one enters intending to usurp the pos- 
session, and to oust another from the freehold. To 
coustitute an entry a disseisin, there must be an 
ouster of the freehold, either by taking the profits 
or by claiming the inheritaace. Brown. 

According to the modern authorities, there 
seems to be no legal difference between the words 
“seisin” and “possession,” although there is a dif- 
ference between the words “disseisin” and “dis- 
possession,” the jormer meaning an estate gained 
by wrong and injury, whereas the latter may be 
by right or by wrong; the former denoting an 
ouster of the disseisee, or some act equivaient to 
it, whereas by the latter no such actisimplied. 6 
Metc. (Mass.) 409. 

Equitable disseisin is where a person is 
wrongfully deprived of the equitable seisin of 
’ Jand, e. g., of the rents and profits. 2 Meriv. 
171; 2 Jac. & W. 166. 

Disseisin by election is where a person al- 
leges or admils himself to be disseised when 
he has not really been so. 


DISSOLUTION 


Disseisinam satis facit, qui uti non 
permittit possessorem, vel minus com- 
mode, licet omnino non expellat. Co. 
Lift. 831, He makes disscisin enough who 
does not permit the possessor to enjoy, or 
makes his enjoyment less beneficial, although 
he does not expel him altogether. 


DISSHIS(TRIX. A female disseiser; a 
disseisoress. Fleta, lib. 4, c. 12, § 4 


DISSEISOR. One who puts another out 
of the possession of his lands wrongfully. 


DISSEISORESS. <A woman who un- 
lawfully puts another out of his land. 


DISSENT. Contrariety of opinion; re- 
fusal to agres wilh something already stated 
or adjudged or to an act previously per- 
formed, 

The term is most commonly used in Amer- 
ican law to denote the explicit disagreement 
of ons or more judges of a court with the de- 
cision passed by the majority upon a case 
before them. In such event, the nen-concur- 
ring judge is reported as “dissenting,” and 
sometinies files a “dissenting opinion.” 


DISSENTERS. Protestant seceders from 
the established church of England. They are 
of many denominations, principally Presby- 
terians, Inlependents, Methodists, and Bap- 
tists; but, as to church government, the 
Baptists are Independents. 


DISSENTING OPINION. The opin- 
ion in whieh a judge announces his dissent 
from the conclusions heid by the majority of 
the court, and expounds his own views. 


DISSIGNARE. To break 
open a seal, 


In old law. 
Whishaw. 


Dissimilium dissimilis est ratio. 
Litt. 191. 
ilar. 


Co. 
Of dissimilars the rale is dissim- 


Dissimulatione tollitur injuria. An 
injury is extinguished by the forgiveness or 
reconcilement of the party injured. LErsk. 
Inst. 4, 4, 108. 


DISSOLUTION. In contracts. The 
dissolution of a contract is the cancellation 
or abrogation of it by the parties themselves, 
with the eifect of annulling the binding force 
of the agreement, and restoring each party 
to his original rights. In this sense it is 
frequently used in the phrase “dissolution of 
a partnership.” 

Of corporations. The dissolution of a 
corporation is the termination of its existence 
as a body politic. This may take place in 


M 


DISSOLUTION 


several ways; as by act of the legislature, 
where that is constitutional; by surrender or 
forfeiture of its charter;.by expiration of its 
charter by lapse of time; by proceedings for 
winding it up under the law; by loss of all 
its members or their reduction below the 
statutory limit. 
In practice. 
proceeding null, abrogating or revoking it; 
unloosing its constraining force; as when an 
injunction is dissolved by the court. 


DISSOLUTION OF PARLIAMENT. 
The crown may dissolve parliament either in 


person or by proclamation; the dissolution is | 
| to perfect. 


usually by proclamation, after a prorogation. 
No parliament may last for a longer period 
than seven years. Septennial Act, 1 Geo. I. 
6. 38. Under 6 Anne, c. 37, upon a demise 
of the crown, parliament became ipso facto 
dissolved six months afterwards, but under 
the Reform Act, 1867, its continuance is now 
nowise affected by such demise. May, Parl. 
Pr. (6th Ed.) 48. Brown. 


DISSOLVE. To terminate; abrogate; 
cancel; annul; disintegrate. To release or 
unloose the binding force of anything. As 
to “dissolve a corporation,” to “dissolve an 
injunction.” 

The phrase “dissolving a corporation” is some- 
times uséd as synonymous with annulling the 
charter or terminating the existence of the corpo- 
ration, and sometimes as meaning merely qa judi- 
cial act which alienates the property and suspends 
the business of the corporation, without terminat- 
ing its existence. A corporation may, for certain 
purposes, be considered as dissolved so far as to 
be incapable of doing injury to the public, while it 
yet retains vitality so far as essential for the pro- 
tection of the rights of others. 1 Holmes, 104. 


DISSUADE. {[n criminal law. To ad- 
vise and procure a person not to do an act. 

To dissuade a witness from giving evidence 
against a person indicted is an indictable of- 
fense ab common law. Hawk. P. C. b. 1, ¢. 
21, § 15. 


DISTILLER. Every person who pro- 
duces distilled spirits, or who brews or mukes 
mash, wort, or wash, fit for distillation or 
for the production of spirits, or who, by any 
process of evaporization, separates alcoholic 
spirit from any fermented substance, or who, 
making or keeping mash, wort, or wasb, has 
also in his possession or nse a still, shall be 
regarded asadistiller, Rev. St. U.S.§ 9247. 
See 16 Blatchf. 547; 2 Ben. 438, 


DISTILLERY. The strict meaning of 
“distillery” is a place or building where 
alcoholic liquors are distilled or manufact- 


The act of rendering a legal | 


378 


DISTRESS 


ured; not every building where the process 
of distillation is used. 45 N. Y. 499. 


DISTINCTE ET APERTE. Inold En- 
glisn practice. Distinctly and openly. Forms 
al words in writs of error, referring to the 
return required to be made to them. Reg. 
Orig. 17. 


Distinguenda sunt tempora. The tims 
is to be considered. 1 Coke, 16a; 2 Pick, 
327; 14 N. Y. 380, 393. 


Distinguenda sunt teompora; aliud est 
favere, aliud perficere. Times must bea 
distinguished; it is one thing to do, another 
3 Leon. 243; Branch, Prine. 


Distinguenda sunt tempora; distingus 
tempora et concordabis leges. Times 
are to be distinguished; distinguish times, 
and you will harmonize laws. 1 Coke, 24. 
A maxim applied to the construction of stat- 
utes. 


DISTINGUISH. Topoint ont an essen- 


| tial difference; to prove a case cited as ap- 
| plicable, inapplicable. 


DISTRACTED PERSON. A term used 
in the statutes of Illinois (Rev. Laws IIL 
1833, p. 852) and New Hampshire (Dig. N. 
H. Laws, 1830, p. 339) to express a atate of 
insanity. 


DISTRACTIO. In the civil law. The 
sale of a pledge by a debtor. The appropria- 
tion of the property of a ward by a guardian. 
Calvin. 


DISTRAHERE. Tosell; todraw apart; 
to dissolve a contract; to divorce. Calvin. 


DISTRAIN. To take as a pledge prop- 
erty of another, and keep the same until he 
performs his obligation or until the property 
is replevied by the sheviff. It was used to 
secure an appearance in court, payment of 
rent, performance of services, ete. 3 BL. 
Comm. 231; Fitzh. Nat. Brev. 32, B, C, 228, 

Distress is now generally resorted to for 
the purpose of enforcing the payment of rent, 
taxes, or other duties. 


DISTRAINER, or 
He who seizes a distress. 


DISTRAINT. Seizure. 


DISTRESS. The taking a personal chat- 
tel out of the possession of a wrong-oer into 
the custody of the party injured, to procure 
a satisfaction for a wrong committed; as for 
non-payment of rent, or injury done by cat- 
tle. 3 Bl. Comm. 6, 7; Co. Litt. 47, The 


DISTRAINOR, 


DISTRESS INFINITE 


379 


DISTRICT REGISTRY 


taking of beasts or other personal property ; Also, under the stale governments, the pros- 


by way of pledge, to enforee the performance 
ef something due from the party distrained 
upon. 38 Bl, Comm. 231. The taking of a 
defendant’s goods, in order to compel an ap- 
pearance in court, Id. 280; 3 Steph. Comm. 
361, 368. 

DISTRESS INFINITE. One that has 
no bounds with regard to its quantity, and 


may be repeated from time to time, until the | 


stubbornness of the parbyis conquered. Such 
are distresses for fealty or suit of court, and 
for compelling jurorstoattend. 3 Bl. Comm. 
281. 


DISTRIBUTEE. Distribntee is admis- 
sible to denote one of the persons who are 
entitled, under the statute of distributions, 
to the personal estate of one who is dead in- 
testute. 9 Ired. 278. 


DISTRIBUTION. In practice. The 
apportionment and division, under authority 
of a court, of the remuinder of the estate of 
an intestate, after payment of the ‘debts and 
charges, among those who are legally entitled 
to share in the same. 


DISTRIBUTIVE FINDING OF THE 
ISSUE. The jury are bound to give their 
verdict for that party who, upon the evidence, 
appears to them to have succeeded in estab- 
lishing his side of the issue. But there are 
cases in which an issue may be found dis- 
tributively, z. ¢., in part for plaintiff, and in 
part for defendant. Thus, in an action for 
goods sold and work done, if the defendant 
pleaded that he never was indebted, on which 
issue Was joined, a verdict might be found 
for the plaintiff as to the goods, and for the 
defendant as to the work. Steph. Pl. (7th 
Ed.) 77d. 


DISTRIBUTIVE JUSTICH. See Jus- 
TICE. 


DISTRICT. One of the portions into 
which an entire state or country may be di- 
vided, for judicial, political, or administra- 
tive purposes. 

The United States are divided into judicial 
districts, in each of which is established a 
district court. They are also divided into 
election districts, collection districts, ete. 

The cireuit or territory within which a per- 
son may be compelled to appear. Cowell. 
Circuit of authority; province. Jinc. Lond. 


DISTRICT ATTORNEY. The prose- 
cuting officer of the United States govern- 
ment in each of the federal judicial districts. 


ecuting officer who represents the state in 
each of its judicialdistricts. In some states, 
where the territory is divided, for judicial 
purposes, into sections called by some: other 
name than “distriets,” the same officer is de- 
nominated “county attorney” or “state's at- 
torney.” 


DISTRICT CLERK. The clerk of a 
district court of either a state or the United 
States. 


DISTRICT COURTS. Courts of the 
United States, each having territorial juris- 
diction over a district, which may include a 
whole state or only part of it. Each of these 
courts is presided over by one judge, wlio must 
reside within the district. These courts have 
original jurisdiction over all admiralty and 
Iaritime causes and all proceedings in bank- 
ruptey, and over all penal and criminal mat- 
ters cognizable under the laws of the United 
States, exclusive jurisdiction over which is 
not vested either in the supreme or circuit 
courts. 

Inferior courts of record in California, Con- 
necticut, Iowa, Kansas, Louisiana, Minne- 
sota, Nebraska, Nevada, Ohio, and Texas are 
also called “district courts.” Their jurisdic- 
tion is for the most part similar to that of 
county courts, (q. v.) 


DISTRICT JUDGE. The judge of a 
United States district court; also, in some 
states, the judge of a district court of the 
state. 


DISTRICT OF COLUMBIA. A terri- 
tory situated on the Potomac river, and being 
the seat of government of the United States. 
It was originally ten miles square, and was 
composed of portions of Maryland and Vir- 
ginia ceded by those states to the United 
States; but in 1846 the tract coming from 
Virginia was retroceded. Legally itis neither 
a state nor a territory, but is made subject, by 
the constitution, to the exclusive jurisdiction 
of congress. 


DISTRICT PARISHES. Ecclesiastical 
divistons of parishes in England, for all pur- 
poses of worship, and for the celebration of 
mInarriages, cliristenings, churchings, and bu- 
rials, formed at the instanee of the queen’s 
commissioners for building new churches, 
See 3 Steph. Comm. 744. 


DISTRICT REGISTRY. By the En- 


| glish judicature act, 1873, § 60, it is provided 


that to facilitute proceedings in country dis- 
tricts the crown may, from time to time, by ~ 


DISTRICTIO 


order in council, create district registries, and 
appoint district registrars for the purpose of 
issuing writs of summons, and for other pur- 
poses. Documents sealed in any such dis- 
trict registry shall be received in evidence 
without further proof, (section 61;) and the 
district registrars may administer oaths or do 
other things as provided by rules or a special 
order of the court, (seetion 62.) Power, how- 
ever, is given to a judge to remove proceed- 
ings from a district registry to the office of the 
high court. Section 65. By order in coun- 
cil of 12th of August, 1875, a number of dis- 
trict registries have been established in the 
places mentioned in that order; and the pro- 
thonotaries in Liverpool, Manchester, and 
Preston, the district registrar of the court of 


admiralty at Liverpool, and the county court | 


registrars in the other places named, have 
been appointed district registrars. Wharton. 


DISTRICTIO. A distress; a distraint. 
Cowell. 


DISTRINGAS. In English practice, A 
writ directed to the sheriff of the county in 
which a defendant resides, or has any goods 
or chattels, commanding him to distrain up- 
on the goods and chattels of the defendant for 
forty shillings, in order to compel lhis appear- 
ance. 3 Steph. Comm. 567. This writ issues 
in eases where it is found impracticable to get 
at the difendant personally, so as to gervea 
summons upon him. Id. 

A distringas is also used in equity, as the 
first process to compel the appearance of a 
corporation aggregate. St. 11 Geo. IV. and 
1 Wm. LV. ¢. 36. 

A form of execution in the actions of deti- 
nue and assise of nuisance. Brooke, Abr. ph. 
26; 1 Rawle, 44. 


DISTRINGAS JURATORES. A writ 
commanding the sherilf to have the bodies of 
the jurors, or to distrain them by their lands 


and goods, that they may appear upon the day | 


appointed. 3 Bl. Comm. 354. It issues at 
the same time with the venizve, though in 
theory afterwards, founded on the supposed 
neglect of the juror to attend. 3 Steph. 
Comm, 590. 


DISTRINGAS NUPER VICE COMI- 
THM. A writ to distrain the goods of one 
who lately filled the office of sheriff, to com- 
pel him todo some act which he ought to have 
done before leaving the office; as to bring in 
the body of a defendant, ur to sell goods at- 
tached under a jt. fa. 


880 


DISTURBANCE OF WAYS 


DISTRINGAS VICECOMITEM. A 
writ of distvingas, directed to the coroner, 
may be issued against a sheriff if he neglects 
to exeeute a writ of tenditioni exponas. 
Arch. Pr. 584. 


DISTRINGERE. In feudal and old En- 
glish law. To distrain; to coerce or compel. 
Spelman; Calvin. 


DISTURBANCE. A wrong done to an 
incorporeal hereditament by hindering or dis- 
quieting the owner in the enjoyment of it. 
Finch, 187; 3 Bl. Comm. 235. 


DISTURBANCE OF COMMON. The 
doing any act by which the right of another 
to his common is incommoded or diminished; 
as wliere one who has no right of common 
puts his catile into the land, or where one 
who haa a right of common puts in cattle 
which are not commonable, or surcharges 
the common; or where the owner of the land, 
or other person, incloses or otherwise ob- 
structs it. 3 Bl. Comm. 237-241; 3 Steph. 
Comm. 511, 512, 


DISTURBANCE OF FRANCHISE. 
The disturbing or incommoding a man in the 
lawful exerciss of his franchise, whereby the 
profits arising from it are diminished. 8 BL, 
Comm, 286; 3 Steph. Comm. 510; 2 Crabb, 
Real Prop. p. 1074, § 2472a. 


DISTURBANCE OF PATRONAGE. 
The hindrance or obstruction of a patron 
from presenting his clerk to a benefice. 3 
Bl. Comm. 242; 5 Steph. Comm. 514. 


DISTURBANCE OF PUBLIC WOR- 
SHIP. Any acts or conduct which interfere 
with the peace and good order of an assembly 
of persons lawfully met together for religious 
exercises. 


DISTURBANCE OF TENURE. In 
the law of tenure, disturbance is where a 
stranger, by menaces, force, persuasion, of 
otherwise, causes a tenant to leave his ten. 
ancy; this disturbance of tenure is an injury 
to the lord for which an action will lie. 2 
Steph. Comm. 414. 


DISTURBANCE OF WAYS. This 
happens where a person who has a right of 
way over another's ground by grant or pre- 
scription is obstructed by inclosures or other 
obstacles, or by plowing across it, by which 
means he cannot enjoy lis right of way, or at 
least in so commodious a manner as he might 
have done. 3 Gl. Comm, 241, 


DISTURBER 


DISTURBER. Ifa bishop refuse or neg- 
leet to examine or admit a patron's clerk, 
without reason assigned or nolice given, he 
is styled a “disturber” by the law, and shall 
not have any title to present by lapse; for no 
man Shall take advantage of his own wrong. 
2 GB). Comm. 278. "a 


DITCH, The words “diteh” and “drain” 
have no technical or exact meaning. They 
both may wean a hollow space in the ground, 
natural or artificial, where water is collected 
or passes off. 5 Gray, 64. 


DITES OUSTER. L. Fr. Say over. 
The form of awarding a respondeas ouster, 
in the Year Books. M. 6 Edw. III. 49. 


DITTAY. In Scotch law. A technical 
term in civil law, signifying the matter of 
charge or ground of indictment against a per- 
son accused of crime. Yaking up diltay is 
obtaining informations and presentments of 
crime in order to trial. Skene, de Verb. 
Sign.; Bell. 


DIVERSION. A turning aside or alter- 
ing the natural course ofa thing. The term 
is chiefly applied to the unauthorized chang- 
ing the course of a water-course to the prej- 
udice of a lower proprietor. 


DIVERSITE DES COURTS. A trea- 
tise on courts and their jurisdiction, written 
in French in the reign of Edward III. as is 
supposed, and by some attributed to Fitzher- 


bert. It was first printed in 1525, and again 
in 1534. Crabb, Eng. Law, 330, 483. 
DIVERSITY. Incriminal pleading. A 


plea by the prisoner in bar of execution, al- 
leging that be is not the same who was at- 
tainted, upon which a jury is immediately 
impaneled to try the collateral issue thus 
raised, viz., the identity of the person, and 
not whether he is guilty or innocent, tor that 
has been already decided. 4 bl. Comm. 396. 


DIVERSO INYUITU. Lat. With a 
different view, purpose, or design; in a dif- 
ferent view or point of view; by a different 
course or process. 1 W. Bl. 89; 4 Kent, 
Comm. 2il, note. 


DIVERSORIUM. In old English law. 
A jodging srinn. Townsh. Pl. 35, 


DIVERT. To turn aside; to turn out of 
the way; to alter the course of things. Usu- 
ally applied to water-courses. Ang. Water- 
Courses, § 97, et seq. Sometimes to reads. 
8 East, 394, 


381 


DIVINE SERVICE 


DIVES. In the practice of the English 
chaneery division, “dives costs” are costs on 
the ordinary scale, as opposed to the costs 
formerly allowed toa successful pauper suing 
or defending in formié pauperis, and which 
consisted only of lis costs out of pocket. 
Daniell, Ch, Pr. 43. 


DIVEST. Equivalent to devest, (q. 2.) 


DIVESTITIVE FACT, A _ faet by 
means of which a right is divested, terminat- 
ed, or extinguished; as the right of a tenant 
terminates with the expiration of his lease, 
and the right of a creditor is at an end when 
his debt has been paid. Holl. Jur. 182. 


Divide et impera, cum radix et vertex 
imperii in obedicntium consensu rata 
sunt. 4Inst.35. Divideand govern, since 
the foundation and crown of empire are es- 
tablished in the consent of the obedient. 


DIVIDEND. A fund to be divided. 
The share allotted to each of several persons 
entitied to share in a division of profits or 
property. Thus, dividend may denote a 
fund set apart by a corporation out of its 
profits, to be apportioned among the share- 
holders, or the proportional amount falling 
to each. In banukraptey or insolveney prac- 
tice, a dividend is a proportional payment to 


| the creditors out of the insolvent estate. 


In old English law. The term denotes 
one part of an indenture, (gq. 2.) 


DIVIDENDA. In old records. An in- 
denture; one counterpart of an indenture. 


DIVINARE. Lat. To divine; to con- 
jecture or guess; to foretell. Divinatio, a 
conjecturing or guessing. 


Divinatio, non interpretatio est, que 
omnino recedit a litera. That is guess- 
ing, not interpretation, which altogether de- 
parts from the letter. Bac. Max. 18, (in 
reg. 3,) citing Yearb. 3 Hen. VI. 20. 


DIVINE SERVICE. Divine service 
was the name of a feudal tenure, by which 
the tenants were obliged to do some special 
divine services incertain; as tosing so many 
masses, to distribute sueh & sum in alins, 
and the like. (2 Bl. Comm. 102; 1 Steph. 
Comm. 227.) It differed from tenure in 
Jrankaimoign, in this: that, in case of the 
tenure by divine service, the lord of whom 
the Jands were holden might distrain for its 
non-performance, whereas, in case of frank- 
aimoitgn, the lord has no remedy by distraint 
for neglect of the service, but merely a right 


Lace 


DIVISA 


of complaint to the visitor to correct it. Moz- 


ley & Whitley. 


DIVISA. In oid English law. A de- 
vice, award, or decree; also a devise; also 
bounds or limits of division of a parish or 
farm, etc. Cowell. Also a court held on 
the boundary, in order to’settle disputes of 
the tenants. 


Divisibilis est semper divisibilis. A 


thing divisible may be forever divided. 
DIVISIBLE, 
of being divided. 
A contract cannot, in general, be divided in such 
& manner that an action may be brought, or a right 
accrue, ona part of it. 2 Pa. St, 454. 
DIVISIM. In old English law. 
ally; separately. Bract. fol. 47. 


That which is susceptible 


Sever- 


DIVISION. In English law. One of 
the smaller subdivisions of a county. Used 
in Lincolnshire as synonymous with “rid- 
ing” in Yorkshire. 


DIVISION OF OPINION. In the 
practice of appellate courts, this term de- 
notes such a disagreement among the judges 
that there is not a majority in fayor of any 
one view, and hence no decision can be ren- 
dered on the case. 
denotes a division into two classes, one of 
which may comprise a majority of the judges; 
as when we speak of a decision having pro- 
ceeded from a “divided court.” 


DIVISIONAL COURTS. Conrts in 
England, consisting of two or (in special 
cases) more judges of the high court of jus- 
tice, sitting to transact certain kinds of busi- 
ness which cannot be disposed of by one 
judge. 


DIVISUM IMPERIUM. Lat. A di- 
vided jurisdiction. Applied, e g., to the ju- 
risdiction of courts of common taw and eq- 
uity over the same subject. 1 Kent, Comm. 
366; 4 Steph, Comm. 9. 


DIVORCE. The legal separation of man 
and wife, effected, for cause, by the judg- 
ment of a court, and either totally dissolving 
the marriage relation, or suspending its ef- 
fects so far as concerns the cohabitation of 
the parties. 

The dissolution is termed “divorce from the bond 
of matrimony,” or, in the Latin form of tho ex- 
pression,“ vinewlo mairimonil; ” the suspension, 
“divorce from bed and board, ”“:mense et there.” 
The former divorce puts an end to the marriage; 
the latter leaves it in full force. 2 Bisb. Mar. & 
Div. § 225. 

The term “divoree” is now applied, in England, 


But it sometimes also | 


382 


| 


| the plaintiff, 


DO UT DES 


both to decrees of nullity and decrees of dissolu- 
tion of marriage, while in America it is used only 
in eases of divorce a mensea or a vinculo, a decree 
of nullity of marriage being granted for the causes 
for which a divorce a vineulo was formerly ob 
tainable in England. 


DIVORCE A MENSA ET THORO, 
A divorce from table and bed, or from bed 
and board. <A partial or qualified divorce, 
by which the parties are separated and for- 
bidden to live or cohabit together, without 
affecting the marriage itself. 1 Bl. Comm. 
440; 3 Bl. Comm. 94; 2 Steph. Comm. 311; 
2 Bish. Mar. & Div. § 225. 


DIVORCE A VINCULO MATRIMO- 
NII. A divorce from the bond of marriage, 
A total divorce of husband and wife, disselv- 
ing the marriage tie, and releasing the par- 
ties wholly from their matrimonial obliga- 
tions. 1 Bl. Comm. 440; 2 Steph. Comm. 
310, 311; 2 Bish. Mar. & Div. § 225. 


Divortium dicitur a divertendo, quia 
vir divertitur ab uxore. Co, Litt. 2385. 
Divorce is called from divertendo, because 4 
moan is diverted from his wife. 


DIXIEME. Fr. ‘Tenth; the tenth part. 
Ord. Mar. liv. 1, tit. 1, art. 9. 

In old French law. <An income tax 
payable to the crown. Steph, Leet. 359. 


DO. Lat. I give. The ancient and 
aptest word of feoffment and of gift. 2 Bi, 
Comm. 310, 316; Co, Litt. 9. 


DO, DICO, ADDICO. Lat. I give, I 
say, I adjudge. Three words used in the 
Roman Jaw, to express the extent of the eivil 
jurisdiction of the prwator. Do denoted that 
he gave or granted actions, exceptions, and 
judices; dico, that he pronounced judgment; 
adidico, that he adjudged the controverted 
property, ur the goods of the debtor, ete., to 
Mackeld. tom. Law, § 39. 


DO, LEGO. Lat. I give, I bequeath; 
or I give and bequeath. ‘The formal words 
of making a bequest or legacy, in the Roman 
law. Titio et Seio hominem Stichum do, 
lego, I give and bequeath to Titius and Seius. 
my man Stichus. Inst. 2, 20, 8, 30, 31. 
The expression is literally retained in mod- 
ern wills. 


DO UT DES. Lat. I give that you 
may give; L give [you] that you may give 
[me.] A formula in the civil law, consti- 
tuting a general division under which those 
contracts (termed “innominate”) were 
classed in which something was given by 
one party as a consideration for something 


DO UT FACIAS 


given by the other. 
2 Bl. Comm, 444. 


DO UT FACTIAS. Lat. 1 give that you 
may do; I give [you] that yon’ may do or 
make [for me.} A formula in the civil law, 
under which those contracts were classed in 
which one party geve or agreed to give 
money, in consideration the other party did 
or performed certain work. Dig. 19, 5, 5; 2 
Bi. Comm. 444. 

In this and the foregoing phrase, the conjunction 
“ut” isnot to be taken as the technical means of 
expressing acousideration. In the Roman usage, 
this word imported a modus, that is, a qualifica- 
tion; while a considoration (causa) was more 
aptiy expressed by the word “qiia,” 


Dig. 19, 4; Id. 19, 5, 5; 


DOCK, v. To curiail or diminish, as to 
dock an entail. 
DOCK,n. The cagoor inclosed space ina 


criminal court where prisoners stand when 
brought in for trial. 

The space, in a river or harbor, inclosed 
between two wharves, 17 How, 454, 


DOCK-MASTER. An officer invested 
with powers within the docks, and a certain 
distance therefrom, te direct the mooring and 
removing of ships, so as to prevent obstruc- 
tion to the dock entrances. 
ley. 


DOCK WARRANT. In- English law, 
A warrant given by dock-owners to the 
owner of merchandise impurted and ware- 
housed on the dock, upon the faith of the 
bills of lading, as a recognition of his title lo 
the goods. It is a negotiable instrument, 
Pull. Port of London, p. 375. 


DOCKAGH. The sum charged for the 
use of a dock. In the case of a dry-dock, it 


has been held in the nature of rent. 
1 Newb, Adm. 69. 
DOCKET, v. To abstract and enter ina 


book, 93 Bl. Comm. 397, 395, To make a 
brief entry of any proceeding in a court of 
justice in the docket. 


DOCERT, n. A minute, abstract, or 
brief entry; or the book containing such en- 
tries. A small piece of paper or parchment 
having the effect of a larger. Blount. 

In practice. A forinal record, entered 
in brief, of the proceedings in a court of jus- 
tice, 

A book containing an entry 1n brief of all 
the important acts done in court in the con- 
duct of each case, from its inception to its 
conclusion. Pub. St. Mass. 1882, p. 1290. 


383 


Mozley & Whil- | 


DOCUMENT 


The docket of judgments is a brief writing or 
statement of a judgment made from the record 
or roll, generally kept in books, alphabetically ar- 
ranged, by the elerk of the court or county clerk. 
1 Bradf. Sur. 343. 

The name of “dockat” or “trial docket” is 
sometimes given to the list or calendar of 
causes set to be tried at a specified term, pre- 
pared by the clerks for the use of the court 
and bar. 

In the practice of some of the states there 
are several species of dockets, such as the 
“appearance docket,” “judgment docket,” 
“execution docket,” etc., each containing a 
brief record of the class of proceedings indi- 
cated by its name, 


DOCKET, STRIKING A. A phrase 
formerly used in English bankruptey prac- 
tice. It referred to the entry of certain pa- 
pers at the bankruptcy ottice, preliminary to 
the prosecution of the fiat against a trader 
who had become bankrupt. These papers 
consisted of the allidavit, the bond, and the 
petition of the creditor, and thetr object was 
to obtain from the lord chancelior his fiat, 
authorizing the petitioner to prosecute his 
complaint against the bankrupt in the vank- 
ruptey courts. Brown. 


DOCTOR. This term means, simply, 
practitioner of physic, without respect te 
system pursued, <A certificate of a home- 
pathic physician is a “doctor’s certificate.” 
4 E. D, Smith, 1. 


DOCTOR AND STUDENT. The title 
of a work written by St. Germain in the 
reign of Henry VIL. in which many princi- 
ples of the common law are discussed in & 
popular manner. It id in the form of a dia- 
logue between a doctor of divinity and a stu- 
dent in law, and las always been considered 
a book of merit and authority. 1 Kent, 
Comm. 504; Crabb, Eng. Law, 482, 


DOCTORS’ COMMONS. An institu- 
tion near St. Paul's Churchyard, in London, 
where, for a long time previous to 1857, the 
ecclesiastical and admiralty courts used to be 
held, 


DOCTRINE. A rule, principle, theory, 
or tenet of the law; as, the doctrine of mer- 
ger, the doctrine of relation, ete. 


DOCUMENT. An instrument on which 
is recorded, by means of lelters, figures, or 
marks, Matter which may be evidentially 
used. In this sense the term “document” 
applies to writings; to words printed, litho- 


| graphed, or photographed; to seals, plates, ur 


DOCUMENTS 


stones on which inscriptions are cut or en- 
graved; to photographs and pictures; to 
maps and plans. The inscription may be on 
stone or gems, or on wood, as well as on pa- 
per or parchment. 1 Whart. Ev. § 614. 


DOCUMENTS. The deeds, agreements, 
title-papers, letters, receipts, and other writ- 
ten instruments used to prove a fact. 

In the civil law. Jividence delivered in 
the forms established by law, of whatever 
nature such evidence may be. The term is, 
however, applied principally to the testimony 
of witnesses, Sav. Dr. Rom. § 165. 


DODRANS. Lat. In Roman law. A 
subdivision of the es, containing nine uz- 
ci ; the proportion of nine-twelfths, or three- 
fourths. 2 Bl. Comm. 462, note. 


DOF, JOHN. The name of the fictitious 
plaintiff in the action of ejecument. 3Steph. 
Comm. 618. 


D@iD-BAWA. In Saxon law. 
ual perpetrator of a homicide. 


DOER. In Scotch law. 
torney. 1 Kames, Eq. 325. 


DOG-DRAW. In old forest law. The 
manifest deprehension of an offender against 
yenison in a forest, when lie was found draw- 
ing after a deer by the scent of a hound led 
in his hand; or where a person had wounded a 
deer or wild beast, by shooting at him, or 
otherwise, and was caught with a dog draw- 
ing after him to receive the same. Man- 
wood, Forest Law, 2, ¢. 8. 


DOG-LATIN. The Latin of illiterate 
persons; Latin words put together on the 
English grammatical system. 


DOGGER. In maritime law. A light 
ship or yessel; dogger-jish, fish brought in 
ships. Cowell. 


DOGGER-MEN. 
long to dogger-ships. 


DOGMA. In the civil law. A word 
occasionally used as descriptive of an ordi- 
nance of the senate. See Noy. 2,1, 1; Dig. 
a, 1b. 


DOING. The formal word by which 
serutces were reserved and expressed in old 
conveyances; as “rendering” (reddendo) was 
expressive of rent. Perk. c. 10, §§ 625, 635, 
638. 


DOLITEIN, or DOTT. A _ base coin of 
smnall value, prohibited by St.3 Hen. Y. 


The act- 


An agent or at- 


Fishermen that be- 


0.1. We still retain the phrase, in the com- | cumvent. 


384 


DOLUS 


mon saying, when we would undervalue a 
man, that he is not worth a doit. Jacob. 


DOLE. A part or portion of a meadow is 
so called; and the word has the general 
signification of share, portion, or the like; as 
“to dole out” anything among 80 many poor 
persons, meaning to deal or distribute in por- 
tions to them. Holthouse. 

In Seotch law. Criminal intent; evilde- 
sign. Bell, Dict. voc. “Crime.” 


DOLES, or DOOLS. Slips of pasture 
left between the furrows of plowed land. 


DOLG. Sax. 


DOLG-BOTR. 
or wound. Cowell. 


DOLI CAPAX. Lat. Capable of malice 
or criminal intention; having sulfficient dis- 
cretion and intelligence to distinguish be- 
tween right and wrong, and so to become 
amenable to the eriminal laws. 


DOLI INCAPAX. Incapable of crimi- 
nal intention or malice; not of the age of 
discretion; not possessed of sufficient discre- 
tion and intelligence to distinguish between 
right and wrong to the extent of being 
criminally responsible for his actions. 


DOLLAR. The unit employed in the 
Uniled States in calculating money values, 
It is coined both in gold and silver, and is of 
the value of one hundred cents. 


DOLO. In Spanish law. Bad or mis- 
chievous design. White, New Recop. b. 1, 
tits Ihee.d; 8 0. 


Dolo facit qui petit quod redditurus 
est. He acts with guile who demands that 
which he will have to return. Broom, Max. 


346. 


Dolo malo pactum se non servatu- 
rum, Dig. 2, 14,7,§9. An agreement in- 
duced by fraud cannot stand. 


A wound. Spelman. 


A recompense for a scar 


Dolosus versatur in generalibus. A 
person intending to deceive deals in general 
terms. Wing. Max. 636; 2 Coke, 34a; 6 
Clark & F. 699; Broom. Max. 289. 


Dolum ex indiciis perspicuis probari 
convenit. Fraud should be proved by clear 
tokens. Code, 2, 21,6; 1 Story, Cont. § 625. 


DOLUS. In the civil law. Guile; de- 
eeitfulness; malicious frand. <A fraudulent 
address or trick used to deceiye some one; 
afraud. Dig. 4, 3,1. Any subtle contriv- 
ance by words or acts with a design to cir- 
2 Kent, Comm. 560° Coda, 2, 21. 


DOLUS 


Such acts or omissions as operate ag a de- 
ception upon the other party, or violate the 
just confidence reposed by him, whether 
there be a deceitful intent (madus animus) or 
not. Poth, Traité de Dépit, nn. 28, 27; 
Story, Bailm. § 20a; 2 Kent, Comm. 506, 
note. 

Fraud, willfulness, or intentionality. In 
that use it is opposed to~ulpa, which is neg- 
ligence merely, in greater or less degree. 
The policy of the law may sometimes treat 
extreme culpa as if it were dolus, upon the 
maxim culpa dole comparatur. A person 
is always liable for dolus producing damage, 
but not always for culpa producing dam- 
age, even though extreme, e. g., a deposita- 
ry is only liable for dolus, and not for negli- 
gence. Brown. 


Dolus auctoris non nocet successori. 
The fraud of a predecessor prejudices not his 
successor. 


Dolus cireuitu non purgatur. Fraud 
is not purged by cireuity. Bac. Max. 4; 
Broom, Max. 228. 


DOLUS DANS LOCUM CONTRACT- 
UI. Fraud (or deceit) giving rise to the 
contract; thatis, afraudulent misrepresenta- 
tion made by one of the parties to the con- 
tract, and relied upon by the other, and 
which was actually instrumental in inducing 
the latter to enter into the contract. 


Dolus est machinatio, cum aliud dis- 
simulat aliud agit. Lane, 47, Deceit is 
an artifice, since it pretends one thing and 
does another. 


Dolus et fraus nemini patrocinentur, 
(patrocinari debent.) Deceit and fraud 
shall excuse or benelit no man. Yearb, 14 
Hen. VIII. 8; Best, Ev. p. 409, § 428; 1 Sto- 
ry, Eq. Jur. § 395. 


Dolus latetin generalibus. Fraud lurks 
in generalities. Tray. Lat. Max. 162. 


DOLUS MALUS. Fraud; deceit with 
an evilintention, Distinguished from dolus 
bonus, justifiable or allowable deceit. Calvin.; 
Broom, Max. 349; Mackeld. Rom. Law, § 179. 
Misconduct. Magna negligentia culpa est; 
mayna culpa dolus est, (great negligence is a 
fault; a great fault is fraud.) 2 Kent, Comm. 
560, note. 


Dolus versatur in generalibus. Fraud 
deals in generalities. 2 Coke, 34a; 3 Coke, 
dla. 


DOM. PROC. An abbreviation of Do- 
mus Procerttm or Domo Procertm,; the 
AM.DICT.LAW—25 


385 


DOMESMEN 


house of lords in England. Sometimes ex- 
pressed by the letters D. P. 


DOMAIN. The complete and absolute 
ownership of land; a paramount and individ- 
ual right of property in land. Also the real 
estate so owned. The inherent sovereign 
power claimed by the legislature of a state, 
of controlling private property for public 
uses, is termed the “right of eminent do- 
main.” 2 Kent, Comm. 339. 

The public lands of a state are frequently 
termed the “public domain,” or “domain of 
the state.” 1 Kent, Comm. 166,259; 2 Kent, 
Comm. 339, note. 

A distinction has been made between “prop- 
erty” and “domain.” ‘The former is said to be that 
quality which is conceived to be in the thing itself, 
considered as belonging to such or such person, ex- 
clusively ofall others. By the latter is understood 
that right which the owner bas of disposing of 
the thing. Hence “domain” and “property” are 
said to be correlative terms. The one is the active 
right to dispose of; the other a passive quality 
which follows the thing and places it at the dispo- 
sition of the owner. 3 Toullier, no. 83. 


DOMBEC, DOMBOC. (Sax. From 
dom, judgment, and bee, boc, a book.) Dome- 
book or doom-book. A name given among 
the Saxons to a code of laws. Several of the 
Saxon kings published domloes, but the most 
important one was that attributed to Alfred, 
Crabb, Com. Law, 7. ‘This is sometimes con- 
founded with the celebrated Domesday-Book, 
See Domn-Boor, Domrspay. 


DOME. (Sax.) Doom; sentence; judg- 
ment. An oath. The homager’s oath in 
the black book of Hereford. Blount. 


DCOME-BOOK. A book or code said to 
have been compiled under the direction of 
Alfred, for the general use of the whole king- 
dom of England; containing, as is supposed, 
the principal maxims of the common law, 
the penalties for misdemeanors, and the 
forms of judicial proceedings. It is said to 
have been extant so late as the reign of Ed- 
ward IV., but is now lost. 1 Bl. Comm. 64, 
65. 


DOMESDAY, DCMESDAY - BOOK. 
(Sax.) An ancient record made in the time 
of William the Conqueror, and now remain- 
ing in the English exchequer, consisting of 
two volumes of unequal size, containing mi- 
nule and accurate surveys of the lands in 
England. 2% Bl. Com. 49, 50. The work 
was begun by five justices in cach county in 
1081, and finished in 1086. 


DOMESMEN. 
of judges. 


(Sax.) An inferior king 
Men appointed to doom (judge) 


if 


DOMESTIC 


in matters in controversy. Cowell. Snitors 
inacourt of a manor in ancient demesne, who 
are judges there. Blount; Whishaw; Termes 
de la Ley. 


DOMESTIC, 2. Domestics, or, in full, 
domestic servants,.are servants who reside 
in the same house with the master they serve. 
The term does not extend to workmen or la- 
borers ernployed out of doors. 5 Bin. 167. 

The Louisiana Civil Code enumerates as 
domestics those who receive wages and stay 
in the house of the person paying and em- 
ploying them, for his own service or that of 
his family; such as valets, footmen, cooks, 
butlers, and others who reside in the house. 
Persons employed in public houses are not in- 
eluded. 6 La. Ann. 276. 


DOMESTIC, adj. Pertaining, belong- 
ing, or relating toa home, a domicile, or to 
the place of birth, origin, creation, or trans- 
action. See the following titles. 


DOMESTIC ADMINISTRATOR. One 
appointed at the place of the domicile of the 
decedent; distinguished from a foreign or an 
ancillary administrator. 


DOMESTIC ANIMALS. Horses are 
embraced within this description. 2 Allen, 
209. But dogs are not. 75 Me. 562. 


DOMESTIC ATTACHMENT. A spe- 
cies of attachment against resident debtors 
who absent or conceal themselves, as foreign 
attachment (q. v.) is against non-residents. 
20 Pa. St. 144, 


DOMESTIC BILL OF EXCHANGE. 
A bill of exchange drawn on a person resid- 
ing in the same state with the drawer; or 
dated at a place in the state, and drawn on a 
person living within the state. It is the res- 
idence of the drawer and drawee which must 
determine whether a bill is domestic or for- 
eign. 25 Miss. 143. 


DOMESTIC COMMERCE. Commerce 
carried on wholly within the limits of the 
United States, as distinguished from foreign 
commerce. Also, commerce carried on with- 
in the limits of a single state, as distin- 
guished from interstate commerce. 


DOMESTIC CORPORATIONS. Such 
as were created by the laws of the same state 
wherein they transact business. 


DOMESTIC COURTS. Those existing 
and having jurisdiction at the place of the 
party’s residence or domicile. 


386 


DOMICILE 


DOMESTIC FACTOR. One who re- 
sides and does business in the same state or 
country with his principal. 


DOMESTIC JUDGMENT. A judg- 
ment or decree is domestie in the courts of 
the same state or country where it was orig- 
inally rendered; in other states or countries 
it is called foreign. 


DOMESTIC MANUFACTURES. This 
term in a state statute is used, generally, of 
manufactures within its jurisdiction. 64 Pa. 
St. 100. 


DOMESTICUS. In old European law. 
A seneschal, steward, or major domo; a 
judge’s assistant; an assessor, (g. 0.) Spel- 
man. 


DOMICELLA. In old English law. A 
damsel. Fleta, lib, 1, ¢. 20, 8 80. 


DOMICELLUS. In old English law. A 
hetter sort of servant in monasteries; alsoan 
appellation of a king’s bastard. 


DOMICILE. That place in whicha man 
has voluntarily fixed the habitation of him- 
self and family, not for a mere special or 
temporary purpose, but with the present in- 
tention of making a permanent home, until 
some unexpected event shall occur to induce 
him to adopt some other permanent home. 

In its ordinary acceptation, a person’s domicile 
is the place where he lives or has his home, Ina 
strict and legal sense, that-is properly the domi- 
cile of a person where he has his true, fixed, per- 
manent home and principal establishment, and to 
which, whenever he is absent, he has the intention 
of returning. 42 Vt. 850; 9 Ired. 99. 

Domicile is but the established, fixed, permanent, 
or ordinary dwelling-place or place of residence of 
a person, as distinguished from bis temporary and 
transient, though actual, place of residence. It is 
his legal residence, as distinguished from his tem- 
porary place of abode; or his home, as distin- 
guished from a place to which business or pleas- 
ure way temporarily call him. 29 Conn, 74. 

Domicile is the place where a person has fixed 
his habitation and has a permanent residence, 
without any present intention of removing thera 
from. 4 Barb. 504, 520. 

One’s domicile is the place where one’s family 
permanently resides. 46 Ga. 277, 

In international law, “domicile” means a resi- 
dence at 2 particular place, accompanied with pos- 
itive or presumptive proof of intending to continue 
there for an unlimited time, 32 N. J. Law, 192. 

“Domicile” and “residence” are not syn- 
onymous. The domicile is the home, the 
fixed place of habitation; while residence is 
a transient place of dwelling. 5 Sandf. 44. 

The domicile is the habitation fixed in any placa 
with an intention of always staying there, while 
simple residence is mucb more temporary in its 
character. 4 Hun, 459. 


DOMICILE uo7 


DOMINIUM DIRECTUM 


Domfcile is of three sorts,—domicile by | service is constituted; as the tenement over 


birth, domicile by choice, and domicile by 
operation of law. ‘he first is the common 
case of the place of birth, domiecilium orig- 
tnis; the second is that which is voluntarily 
acquired by a party, proprio motu; the last 
is consequential, as that of the wife arising 
from marriage. Story, Confl. Laws, § 46. 


The term “domicile of succession, ” as contradis- 
tinguished from a commercial, a political, or a 
forensic domicile, may be defined to be the actual 
residence of a man within some particular juris- 
diction, of such character as shall, in accordance 
with certain well-established principles of the 
public law, give direction to the succession of his 
personal estate. 7 Fla. 81. 


DOMICILE OF ORIGIN. The home 
ofthe parents. Phillim. Dom. 25,101. That 
which arises from a man’s birth and connec- 
tions. 5 Ves. 750. The domicile of the par- 
ents at the time of birth, or what is termed 
the “domicile of origin,” constitutes the 
domicile of an infant, and continues until 
abandoned, or until the acquisition of a new 
domicile in a different place. 1 Brock. 389, 
393. 


DOMICILED. Established in a given 
domicile; belonging to a given state or juris- 
diction by right of domicile. 


DOMICILIARY. Pertaining to domi- 
cile; relating toone’s domicile. Existing or 
created at, or connected with, the domicile 
of a suitor or of a decedent. 


DOMICILIATE, To establish one’s 
domicile; to take up one’s fixed residence in 
a given place. 
another person whose legal residence follows 
one’s own. 


DOMICILIUM. Domicile, (9. v.} 


DOMIGERIUM, 
Power over another; also danger. 
4, t. 1, ¢ 10, 


In old English law, 
Bract. 1. 


DOMINA, (DAME.) A title given to 
honorable women, who anciently, in their 
own right of inheritance, held a barony. 
Cowell. 


DOMINANT. Thetenement whose own- 
er, a8 such, enjoys an easement over an ad- 
joining tenement is called the “dominant 
tenement;” while that which is subject to the 
easement is called the “servient” one. 


DOMINANT TENEMENT. A term 
used in the civil and Scotch law, and thence 
in ours, relating to servitudes, meaning the 
tenement or subject in favor of which the 


| Englishlaw. Ancient demesne. 


To establish the domicile of | 


which the servitude extends is called the 
“servient tenement.” Wharton. 


DOMINATIO., In old English law. 
Lordship. 


DOMINICA PALMARUM. (Dominica 
tn ramis palmarum.) L. Lat. Palm Sun- 
day. Townsh.Pl. 131; Cowell; Blount, 


DOMINICAL. That which denotes the 
Lord’s day, or Sunday. 


DOMINICIDE. 
lord er master, 


DOMINICUM. Lat. Domain; demain; 
demesne. A lordship, That of which one 
has the lordship or ownership. That which 
remains under the lord's immediate charge 
and control. Spelman. 

Property; domain; anything pertaining to 
alord. Cowell. 

In ecclesiastical law. Achurch, or any 
other building consecrated to God. Du 
Cange. 


DOMINICUM ANTIQUUM. In old 
Bract, fol. 


The act of killing one’s 


3690. 


DOMINION. Ownership, or right to 
property. 2 Bl. Comm. 1. “The holder has 
the dominion of the bill.” 8 East, 579. 

Sovereignty or lordship; as the dominion 
of the seas. Moll. de Jure Mar. 91, 92. 


DOMINIUM. In thecivil and old En- 
glish law. Ownership; property in the larg- 
est sense, including both the right of proper- 
ty and the right of possession or use. 

The mere right of property, as distinguished 
from the possession or usufruct, Dig. 41, 2, 
17, 1; Calvin. The right which a lord had 
in the fee of his tenant. In this sense the 
word is very clearly distinguished by Brac- 
ton from dominteum. 

The estate of a feoffeato uses. “The feof- 
fees to use shall have the domintum, and the 
cestui que use the disposition.” Latch, 137. 

Sovereignty or dominion. Dominium 
mavris, the sovereignty of the sea. 


DOMINIUM DIRECTUM. In the 
civil law. Strict ownership; that which 
was founded on strict law, as distinguished 
from equity. 

In later law. Property without use; the 
Fight of a landlord. Tay]. Civii Law, 478. 


In feudal law. Right or proper owner- 
ship; the right of a superior or lord, as dis- 
tinguished from that of his yassal or tenant. 


DOMINIUM DIRECTUM ET UTILE 


The title or property which the soverelgn in 
England is considered as possessing in all 
the lands of the kingdom, they being liolden 
either immediately or mediately of him as 
lord paramount. 


DOMINIUM DIRECTUM ET UTILE. 
The complete and absolute dominion in 
property; the union of the title and the ex- 
clusive use. 7? Cranch, 603. - 


DOMINIUM EMINENS. Eminent do- 
mnain. 


Dominium non potest esse in pendenti. 
Lordship cannot be in suspense, @.é., prop- 
erty cannot remain in abeyance. Halk. Law 
Max. 39. 


DOMINIUM PLENUM, Full owner- 
ship; the union of the dominium direcium 
with the dominium utile, Tayl. Civil Law, 
478. 


DOMINIUM UTILE. In the civil 
law. Equitable or pratorian ownership; 
that which was founded on equity. Mack- 
eld. Rom. Law, § 827, note, 

In later law. Use without property; the 
right of atenant. Tayl. Civil Law, 478. 

In feudal law. Usefulor benelicial own- 
ership; the usufruct, or right to the use and 
profits of the soil, as distinguished from the 
dominium directum, (q. v.,) or ownership of 
the soil itself; the right of a vassal or ten- 
ant, 2 Bl. Comm. 105. 


DOMINO VOLENTE. Lat. The own- 
er being willing; with the consent of the 
owner. 


DOMINUS. In feudal and ecclesias- 
tical law. A lord, or feudal superior. 
Dominus rew, the lord the king; the king's 
titie as lord paramount. 1 BI. Comm. 367. 
Dominus capitalis, a chief lord. Dominus 
medius, a mesne or intermediate lord. Dom- 
inus ligius, liege lord or sovereign. I&d. 

Lord or sir; a title of distinction. It 
usually denoted a knight or clergyman; and, 
according to Cowell, was sometimes given to 
a gentleman of quality, though not a knight, 
especially if he were lord of a manor. 

The owner or proprietor of a thing, as 
distinguished from him who uses it merely. 
Calvin. A master or principal, ag distin- 
guished from an agent or attorney. Story, 
Ag. § 3. 

In the civillaw. A husband. 
ly. Vicat. 


Dominus capitalis loco hsredis hebe- 
tur, gvicties per defectum vel delictum 


A fami- 


588 


a ne ee Se SS 


DOMUS SUA CUIQUE, ETC. 


extinguitur sanguis sui tenentis. Co. 
Litt. 18. The supreme lord takes the place 
of the heir, as often as the blood of the ten- 
ant is extinct through deficiency or crime. 


DOMINUS LITIS. Lat. The master of 
the suit; ¢. e., the person who was really and 
directly interested in the suit as a party, as 
distinguished from his attorney or advocate. 
But the term is also applied to one who, 
though not originally a party, has made him- 
self such, by intervention or otherwise, and 
has assumed entire control and responsibility 
for one side, and is treated by the court as 
liable for costs. See 1 Curt. 201. 


DOMINUS NAVIS. 
The owner of a vessel. 


In the civil law. 
Dig. 39, 4, 11, 2. 


Dominus non maritabit pupillum nisi 
semel. Co, Litt. 9. A lord cannot give a 
ward in marriage but once. 


Dominus rex nullum habere potest 
parem, muito minus superiorem. ‘he 
king cannot have an equal, much less a su- 
perior. 1 Reeves, Eng. Law, 115. 


DOMIT#H. Lat. Tame; domesticated; 
not wild. Applied to domestic animals, in 
which 4 man may havean absolute property, 
2 Bil. Comm. 391, 


DOMMAGES INTERETS. In French 
law. Damages. 


DOMO REPARANDA. A writ that lay 
for one against his neighbor, by the antici- 
pated fall of whose house he feared a damage 
and injury to his own. Reg. Orig. 153. 


DOMUS. Lat. In the civil and old En. 
glish law. A house or dwelling; a habita- 
tion. Inst. 4,4,8; Townsh, Pl. 183-185, 


DOMUS CAPITULARIS. In old rec- 
ords. A chapter-house; the chapber-house. 
Dyer, 268. 


DOMUS CONVERSORUM. An an- 
cient house built or appointed by King Henry 
III. for such Jews as were converted to the 
Christian faith; but King Edward III., who 
expelled the Jews from the kingdom, deputed 
the place for the custody of the rolls and 
records of the chancery. Jacob. 


DOMUS DEI. The house of God; a 


name applied to many hospitals and religions. 


houses. 
DOMUS PROCERUM. Tha house of 
lords, abbreviated into Dom. Pyoc., or D. P. 


Domus sua cuique est tutissinum 
refugium. To every man his own house ia. 


DOMUS TUTISSIMUM, ETC. 389 


vis safest refuge. 5 Coke, 916; 11 Coke, 82; 
3 Inst. 162. The house of every one is to 
him as his castle and fortress, as wellfor his 
defense against injury and violenceas for his 
cepose. 5 Coke, 916; Say. 227; Broom, 
Max. 432. A man’s dwelling-house is his 
caglle, not for his own personal protection 
merely, but also for the protection of his 
family and his property therein. 4 Hill, 497. 


Domus tutissimum cuique refugium 
atque receptaculum sit. A man’s house 
should be his safest refuge and shelter, A 
maxim of the Roman law. Dig. 2, 4, 18. 


Dona clandestina sunt semper suspi- 
piosa. 3 Coke, 81, Clandestine gifts are al- 
Ways suspicious. 


Donari videtur, quod nullo jure co- 
gente conceditur. Dig. 50,17,82. Athing 
is said to be given when it is yielded other- 
wise than by virtue of right. 


DONATARIUS. <Adonce; oneto whom 
something is given. 
DONATIO. Lat. A gift. A transfer 


of the title to property to one who receives it 
without paying for it. Vicat. The act by 
which the owner ofa thing voluntarily trans- 
fers the title and possession of thesamefrom 
himself to another person, without any con- 
sideration. 

Its literal translation, “gift,” has acquired in 
real law a more limited meaning, being applied to 
the conveyance of estates tail. 2 Bl. Comm. 316; 
Littleton, § 59; West, Symb. § 254; 4 Cruise, Dig. 
51. There are several kinds of donation, as: Do- 
natio simplex et pura, (simple and pure gift 
without compulsion orconsideration;} donatio ab- 
soluti ct larga, (av absolute gift;) donatio condi- 
tlonatis, (a conditional gift;) doneatio stricta et 
couretura, (a restricted gift, as an estate tail.) 


DONATIO INTER VIVOS. A gift 
between the living. The ordinary kind of 
gift by one person to another. 2 Kent, 
Comm. 438; 2 Steph. Comm. 102. A term 
derived from the civil law. Inst, 2, 7, 2. 

A donation inter vivos (between living 
persons) is an act by which the donee divests 
himself at present and irrevocably of the 
thing given in favor of the donee who ac- 
cepts it. Civil Code La. art. 1468. 


DONATIO MORTIS CAUSA. (Lat, 
A gift in prospect of death.) <A gift made 
by a person in sickness, who, apprehending 
his dissolution near, delivers, or causes to be 
delivered, to another the possession of any 
personal goods, to keep as his own in case of 
the donor's decease. 2 Bl. Comm. 614. 


DONATOR NUNQUAM, ETC. 


The civil law defines it to be a gift under appre- 
hension of death; as when anything is given upon 
condition that, if the donor dies, the donee shall 
possess it absolutely, or return it if the donor 
should survive or should repent of having mads 
the gift, or if the donce should dis before the do- 
nor. 1 Miles, 109-117. 

A gift in view of death is one which is 
made in contemplation, fear, or peril of 
death, and with intent that it shall take ef- 
fect only in case of the death of the giver. 
Civil Code Cal. § 1149. 

A donation mortis causa (in prospect of 
death) is an act to take effecb when the do- 
nor shall no longer exist, by which he dis- 
poses of the whole or a part of his property, 
and which is irrevocable. Civil Code La. 
art. 1469. 


Donatio non prxsumitur. 
presumed. Jenk. Cent. 109. 


Donatio perficitur possessione acci- 
pientis. A gift is perfected [made com- 
plete] by the possession of the receiver. Jenk. 
Cent. 109, case 9. A gift is incomplete un- 
til possession is delivered. 2 Kent, Comm. 
458. 


Donatio principis intelligitur sine 
prajudicio tertii. Day. Ir. K.B. 75. A 
gift of the prince is understood without 
prejudice to a third party. 


DONATIO PROPTER NUPTIAS. A 
gift on accountof marriage. In Roman law, 
the bridegroom’s gift to the bride in antici- 
pation of marriage and to secure her dos was 
called “donatio ante nuptias;” but by an 
ordinance of Justinian such gift might be 
made after as well as before marriage, and 
in that case it was called “donatio prepter 
nuptias.” Mackeld. Rom. Law, § 572. 


DONATION. In ecclesiastical law. 
A mode of acquiring a benelice by deed of 
gift alone, without presentation, institution, 
or induction. 3 Steph. Comm. 81. 

In general. <A gift. See Donatio. 


DONATIVE ADVOWSON. In eccle- 
siasticallaw. A species of advowson, where 
the benefice is conferred on the clerk by the 
patron’s deed of donation, without presenta- 
tion, institution, or induction. 2 Bi, Comm. 
23; Termes de la Ley. 


DONATOR. A donor; one who makesa 
gift, (donatio.) 


A gift is not 


Donator nunquam desinit possidera, 
antequam donatorius incipiat possidere. 
The donor never ceases to possess, until the 
donee begins to possess. Buact. fol. 416 


DONATORIUS 


DONATORIUS. A donee; a person to 
whom a gift is made; a purchaser. Bract. 
fol. 13, et seq. 


DONATORY. The person on whom the 
king bestows his right to any forfeiture that 
has fallen to the crown. 


DONE. Distinguished from “made.” 
“A «deed made’ may no doubt mean an ‘in- 
strument made;’ but a ‘deed done’ is not an 
‘instrument done,’—it is an ‘act done; 
and therefore these words, ‘made and done,’ 


apply to acts, as well as deeds.” Lord 
Brougham, 4 Bell, App. Cas. 38. 
DONEE. In old English law. He to 


whom lands were given; the party to whom 
a donatio was made. 

In later law. He to whom lands or ten- 
ements are given in tail. Litt. § 57. 

In modern and American law. The 
party executing a power; otherwise called 
the “appointer.” 4 Kent, Comm. 316. 


DONIS, STATUTE DE. See DE Do- 
NIs, THE STATUTE. 


DONNEVUR D’AVAL. In French law. 
Guarantor of negotiable paper other than by 
indorsement. 


DONOR. fn old English law. He by 
whom lands were given to another; the par- 
ty making a donatio. 

In later law. Ue who gives lands or ten- 
ements to anotherin tail. Litt. § 57; Termes 
de la Ley. 

In modern and American law. The 


party conferring a power. 4 Kent, Comm. 
316. 


DONUM, Lat. In the civil law. A 
gift; a free gift. Calvin. Distinguished 
from munus. Dig. 50, 16, 194. 


DOOM. In Scotch law. Judicial sen- 
tenes, or judgment. The decision or sen- 
tence of a court orally pronounced by an offi- 
cer called a “dempster” or “deemster.” In 
modern usage, criminal sentences still end 
with the words “which is pronounced for 
doom.” 


DOOMSDAY-BOOK. See Domespar- 
Book. 


DOOR. The place of-usual entrance ina 
house, or into a room in the house. 


DORMANT. Literally, sleeping; hence 
inactive; inabeyance; unknown; concealed. 


390 


DOS 


DORMANT CLAIM. One which fs in 
abeyance. 


DORMANT EXECUTION. One which 
a creditor delivers to the sheriff with direc- 
tions to levy only, and not to sell, until fur- 
ther orders, or until a junior execution is re- 
ceived, 


DORMANT JUDGMENT. One which 
has not been satisfied, nor extinguished by 
lapse of time, but which has remained s0 
long unexecuted that execution cannot now 
be issued upon it without first reviving the 
judgment. 


DORMANT PARTNERS. Those whose 
names are not known or do not appear ag 
partners, but who nevertheless are silent 
partners, and partake of the profits, and 
thereby become partners, either absolutely to 
all intents and purposes, or at all events in 
respect to third parties. Dormant partners, 
in strictness of language, mean those who 
are merely passive in the firm, whether 
known or unknown, in contrudistinction to 
those who are active and conduct the busi- 
ness of the firm, as principals. See Story, 
Partn. § 80. 

A dormant partner is one who takes no part in 
the business, and whose connection with the busi- 


ness is unknown. Both secrecy and inactivity are 
implied by the word. 47 N. Y. 15. 


Dormiunt aliquando leges, nunquam 
moriuntur. 2 Inst. 161. The laws some- 
times sleep, never die. 


DORSUM. Lat. The back. In dorse 
recordi, on the back of the record, 5 Coke, 
446, 


DORTURE. (Contracted from dormi- 
ture.) A dormitory of a convent; a place to 
sleep in. 


DOS. In Roman law. Dowry; a wife's 
marriage portion; all that property which on 
marriage is transferred by the wife herself or 
by another to the husband with a view of di- 


ininishing the burden which the marriage 


will entail upon him, It is of three kinds. 
Profectitia dos is that which is derived from 
the property of the wife’s father or paternal 
grandfather. That des is termed adventitia 
which is not profeciitta in respect to its 
source, Whether it is given by the wife from 
her own estate or by the wife’s mother or a 
third person. It is termed receptitia dos 
when accompanied by a stipulation for its 
reclamation by the constitutor on the termi. 
nation of the marriage. See Mackeld. Rom. 
Law, §§ 561, 563. 


oT) 


DOS 


In old English law. The portion given } 
fo the wife by the husband at the church 
door, in consideration of the marriage; dow- 
er; the wife’s portion out of her deceased 
husband’s estate in case he had not endowed 
fer. 


Dos de dote peti non debet. Dower 
ought not to be demanded of dower. Co. 
Litt. 81; 4 Coke, 1225. A widow is not 
dowable of lands assigned to another woman 
in dower. 1 ITil. Real Prop. 135. 


DOS RATIONABILIS. A _ reasonable 
marriage portion, <A reasonable part of her 
husband's estate, to which every widow is 
entitled, of lands of which her husband may 
have endowed her on the day of marriage. 
Co. Litt. 336. Dower, at common law. 2 
Bl, Comm. 184. 


Dos rationabilis vel legitima est cujus- 
libet mulieris de quocunque tenemento 
fertia pars omnium terrarum et tene- 
mentorum, que vir suus tenuit in do- 
minio suo ut de feodo, ete. Co. Litt. 
336. Reasonable or legitimate dower be- 
longs to every woman of a third part of all 
the lands and tenements of which her hus- 
band was seised in his demesne, as of fee, 
ete. 


DOT. (A French word, adopted in Louisi- 
ana.) The fortune, portion, or dowry which 
a woman brings to her husband by the mar- 
riage. 6 Mart. (N. 8.) 460. 


DOTAGE. Dotage is that feebleness of 
the mental faculties which proceeds from old 
age, Itisadiminution or decay of that in- 
tellectual power which was once possessed. 
It is the slow approach of death; of that irrev- 
ocable cessation, without hurt or disease, of 
all the funetions which once belonged to the 
living animal. The external functions grad- 
ually cease; the senses waste away by de- 
grees; and the mind is impereeptibly visited 
by decay. 1 Bland, 389. 


DOTAL. Relating to the dos or portion 
of a woman; constituting her portion; com- 
prised in her portion. 


a 


DOTAL PROPERTY. In the civil law 
in Louisiana, by this term is understood that 
property which the wife brings to the hus- 
band to assist him in bearing the expenses of 
the marriage establishment. Extradotal 
property, otherwise called “paraphernal 
property,” is that which forms no part of 
the dowry. Civil Code La, art. 2335. 


391 


DOUBLE BOND 


DOTALITIUM. In canon and feudal 
law. Dower. Spelman, voc. “Doarium;” 
Calvin. 2 Bl. Comm. 129. Used as early as 
A. D. 841. 


DOTATION. The act of giving a dowry 
or portion; endowmentin general, including 
the endowment of a hospital or other char- 
itable institution, 


DOTH, x. In Spanish law. The mar- 
riage portion of a wile. White, New Recop. 
b. 1, tit. 6, ce. 1. Lhe property which the 
wife gives to the husband on account of mar- 
riage, or for the purpose of supporting the 
matrimonial expenses. Id. b. 1, tit. 7,¢. 1, 
§ 1; Schm. Civil Law, 75. 


DOTEH, v. “To besot” is to stupefy, to 
make dull or senseless, to make to dote; and 
“to dote” is to be delirious, silly, or insane. 
These are some of themeanings. 7 Ind. 441. 


DOTE ASSIGNANDA. A writ which 
lay fora widow, when it was judicially as- 
certained that a tenant to the king was 
seised of tenemerits in fee or fee-tail at 
the day of his death, und that he held of the 
king inchief. Insuch casethe widow might 
come into chancery, and then make oath that 
she would not marry without the king’s 
leave, and then she might have this writ. 
These widows were called the “king’s wid- 
ows.” Jacob; Holthouse. 


DOTE UNDE NIHIL HABET. A 
writ which lies for a widow to whom no 
dower has been assigned. 3 Bl. Comm. 182. 
By 23 & 24 Vict. c. 126, an ordinary action 
commenced by writ of summons has taken its 
place; but it remains in foree in the United 
States. Dower unde nihil habet (which title 
see.) 


Doti lex favet; premium pudoris est; 
ideo pareatur. Co. Litt. 31. The law 
favors dower; it is the reward of chastity; 
therefore let it be preserved, 


DOTIS ADMINISTRATIO. Admeas- 
urement of dower, where the widow holds 
more than her share, etc. 


DOTISSA. A dowager. 


DOUBLE AVAIL OF MARRIAGE. 
In Scotch law. Double the ordinary or sin- 
gle value of a marriage. Bell. See Dv- 
PLEX VALOR MARITAGII. 


DOUBLE BOND. In Scotch law. A 
bond with a penalty, as distinguished from a 
single bond. 2 Kames, Eq. 359. 


DOUBLE COM PLAINT 


DOUBLE COMPLAINT, or DOUBLE 
QUARREL. A grievance made known.by 
a clerk or other person, to the archbishop of 
the province, against the ordinary, for delay- 
ing or refusing to do justice in some cause 
ecclesiastical, ay to give sentence, institute 
a clerk, ete. It is termed a “double com- 


392 


plaint,” because it is most comionly made | 


against both the judge and him at whose 
suit justice is denied or delayed; the effect 
whereof is that the archbishop, taking notice 
of the delay, directs his letters, under his au- 
thentical seal, to all clerks of his province, 
commanding them to admonish the ordinary, 
within a certain number of days, to do the 
justice required, or otherwise to appear be- 
fore him or his official, aud there allego the 
cause of his delay; and to signify to the ordi- 
nary that if hoe neither perform the thing en- 
joined, nor appear nor show cause against 
it, he himself, in his court of andienee, will 
forthwith proceed to do the justice that is 
due. Cowell. 


DOUBLE COSTS. In practice. The 
ordinary single costs of suit, and one-half of 
that amount in addition, 2 Tidd, Pr. 987. 
“Double” is not used here in its ordinary 
sense of “twice” the amount. These costs 
are now abolished in England by St. 5 & 6 
Vict. c. 97. Wharton. 


DOUBLE DAMAGES. Twice the 
amount of actual damages as found by the 
verdict of a jury. 


DOUBLE EAGLE. A gold coin of the 
United States of the value of twenty dollars. 


DOUBLE ENTRY. A system of mer- 
cantile book-keeping, in which the entries in 
the day-book, ete., are posted fewice into the 
ledger. First, to a personal account, that 
is, to the account of the person with whom 
the dealing to which any given entry refers 
has taken place; secondly, to an impersonal 
account, as “goods.” Mozley & Whitley. 


DOUBLE FINE. In old English law. 
A fine sur done grant et render was called a 


“double fine,” because it comprehended the | 


fine sts cognizance de droit come ceo, etc., 
and the fine sur concessit. 2 Bl. Comm. 358. 


DOUBLE INSURANCEH is where divers 
tmsurances are made upon the same interest 
in the same subject against the same risks in 
favor of the same assured, In proportions ex- 
ceeding the value. 1 Phill. Ins. §§ 359, 366. 

A double insurance exists where the same 
person is insured by several insurers sepa- 


DOUBLE WASTE 


rately in respect to the sume subject and in- 
terest. Civil Code Cal. § 2641. 


DOUBLE PLEADING. This is not al 
lowed either in the declaration or subsequent 
pleadings. Its meaning with respect to the 
former is that the declaration must not, in 
support of a single demand, allege several 
distinct matters, by any one of which that 
demand is sufficiently suppo!‘ed. With re- 
spect to the subsequent +leadings, the moan- 
ing is that none of them is to contain sey- 
eral distinet answers to that which preceded 
ii; and the reason of the rule in each ease is 
that such pleading tends to several issues in 
respect of a single claim. Wharton, 


DOUBLE POSSIBILITY. A possi- 
bility upon a possibility, 2 Bl. Comm. 170. 


DOUBLE RENT. In English law. 
Rent payable by a tenant who continues in 
possession after the time for which he hag 
given notice to quit, until the time of lis 
quilting possession. St. 11 Geo. II. c, 19. 


DOUBLE VALUE. This is a penalty 
on a tenant holding over after his landlord’s 
notice toquit. By 4 Geo. Il. c, 28, § 1, it is 
enacted that if any tenant for life or years 
hold over any lands, ete., after the determi- 
nation of his estate, after demand made, and 
notice in writing given, for delivering the 
possession thereof, by the landlord, or the 
person having the reversion or remainder 
therein, or his agent thereunto lawfully au- 
thorized, such tenant so holding over shal] 
pay to the person so kept out of possession 
at the rate of dowble the yearly value of the 
lands, ete., so detained, for so long a time as 
the same are iletained. See Woodf. Landl. 
& Ten. (12th Ed.) 717, et seq. 


DOUBLE VOUCHER. This was when 
a common recovery was had, and an estate 
of freehold was first conveyed to any indif- 
ferent person against whom the pracipe was 
brought, and then he vouched the tenant in 
tail, who vouched over the common vouchee. 
For, if a recovery were had immediately 
against a tenant in tail, it barred only the 
estate in the premises of which he was then 
actually seised, whereas, if the recovery were 
had against another person, and the tenant 
in tail were vouchee, it barred every latent 
right and interest which he might have in 
the lands recovered, 2 Bl. Comm. 359, 


DOUBLE WASTE. When a tenant 
bound to repair suffers a house to be wasted, 
and then unlawfully fells timber to repair it, 


DOUBLES 
he is said to commit double waste. Co. 
Litt. 53. 
DOUBLES. Letters-patent. Cowell. 


DOUBT. The uncertainty which exists 
in relation to a fact, a proposition, or other 
thing; an equipoise of the mind arising from 
an equality of contrary reasons. Ayl. Pand. 
121. 


The term “reasonable doubt” is often used, but 
not easily defined. It is not mere possible doubt; 
because everything relating to human affairs and 
depending on moral evidence is open to some pos- 
sible or imaginary doubt. It is that state of the 
case which, after the entire comparison and con- 
sideration of all the evidence, leaves the minds of 
jurors in such a condition that they cannot say 
they feel an abiding conviction, to a moral cer- 
tainty, of the truth of the charge. The burden of 
proof isuponthe prosecutor. All the presumptions 
of law independent of evidence are in favor of in- 
nocence; and every person is presumed to be inno- 
cent until he is proved guilty. If upon such proof 
there is reasonable doubt remaining, the accused 
is entitled to the benefit of it by an acquittal; for 
it is not sufficient to establish a probability, though 
a strong one, arising from tho doctrine of chances, 
that the fact charged is more likely to be true 
than the contrary, but the evidence must establish 
the truth of the fact to a reasonable and moral 
certainty,—a certainty that convinces and directs 
the understanding and satisiies the reason and 
judgment of those who are bound to act conscien- 
tiously upon it. This is proof beyond reasonable 
doubt; because if the law, which mostly depends 
upon considerations of a moral nature, should go 
further than this, and require absolute certainty, 
it would exclude circumstantial evidence alto- 
gether. Per Shaw, C. J., in 5 Cush. 320, 


DOUN. L. Fr. A gift. Otherwise 
written “dow” and “done.” The thirty- 
fourth chapter of Britton is entitled “De 
Downs.” 


DOVE. Doves are animals fere nature, 
and not the subject of larceny unless Lhey are 
inthe owner's custody; as, for example, in 
a dove-house, or when in the nest before they 
ean iy. 9 Pick. 15. 


DOWABLE. Subject to be charged with 
dower; as dowable lands. 

Entitled or entitling to dower. Thus, a 
dowable interest in lands is such as entitles 
the owner to have such lands charged with 
dower. 


DOWAGER. A widow whois endowed, 
or who has a jointure in heu of dower. In 
England, this is a title or addition given to 
the widows of princes, dukes, earls, and other 
noblemen, todistinguish them from the wives 
of the heirs, who have right to bear the title. 
| Bl. Comm, 224. 


3893 


a 


DOWER BY CUSTOM 


DOWAGER-QUEEN. The widow of the 
king. As such ste enjoys most of the privi- 
leges belonging to her as queen consort. It 
is not treason to conspire her death or violate 
her chastity, because the succession to the 
crown is not thereby endangered, No man, 
however, can marry her without a special 
license from the sovereign, on pain of forfeit- 
ing his lands or goods. 1 Bl. Comm. 233. 


DOWER. The provision which the law 
makes for a widow out of the lands or tene- 
ments of her husband, for her support and 
the nurture of her children. Co. Litt. 30a; 
2 Bl. Comm. 150; 4 Kent, Comm. 35; 1 
Washb. Real Prop. 146. 

Dower is an estate for the life of the widow 
in a cerbain portion of the following real 
estate of her husband, to which she has not 
relinquished her right during the marriage: 
(1) Of ail lands of which the husband was 
seised in fee during the marriage; (2) of all 
lands to which another was seised in fee to 
his nse; (3) of all lands to which, at the time 
of his death, he had u perfect equity, having 
paid all the purchase money therefor. Code 
Ala. 1886, § 1892. 

The term, both technically and in-popular 
acceptation, has reference to real estate ex- 
clusively. ; 

“Dower,” in modern use, {s and should be dis- 
tinguished from “dowry.” The former is a pro- 


vision for a widow on her husband’s death; the 
latter is a bride’s portion on her marriage. 


DOWER AD OSTIUM ECCLESIA. 
Dower at the church door or porch. An an- 
cient kind of dower in England, where a man, 
(being tenant in fee-simple, of full age,) 
openly at the church dour, where all mar- 
riages were formerly celebrated, after affiance 
made and troth plighted between them, e7- 
dowed his wife with the whole of his lands, 
or such quantity as he pleased, at the same 
time specifying and ascertaining the same. 
Litt. 3 39; 2 Bl. Comm. 133. 


DOWER BY THE COMMON LAW. 
The ordinary kind of dower in English and 
American law, consisting of one-third of the 
lands of which the husband was seised in fee 
at any time during the coverture. Litt. 
§ 36; 2 Bl. Comm. 182; 2 Steph. Comm. 302; 
4 Kent, Comm. 35. 


DOWER BY CUSTOM. A kind of 
dower in England, regulated by custom, 
where the quantity allowed the wife differed 
from the proportion of the common law; aa 
that the wife should have half the husband's 
lands; or, in some places, the whole; and, in 


DOWER DE LA PLUIS BELLE 
some, only a quarter. 2 Bl. Comm. 1382; 
Litt. § 37. 


DOWER DE LA PLUIS BELLE. 
L. Fr. Dower of the fairest [part.] A spe- 
cies of ancient English dower, incident to 
the old tenures, where there was a guardian 
tn chivalry, and the wife occupied lands of 
the heir as guardian in socage. If the wife 
brought a writ of dower against such guard- 
{an in chivalry, he might show this matter, 
and pray that the wife might be endowed de 
la pluis belle of the tenement in socage. 
Litt. § 48. This kind of dower was abol- 
ished with the military tenures. 2 BI. 
Comm. 132. 


DOWER EX ASSENSU PATRIS. 
Dower by the father’s assent. A species of 
dower ad ostium ecclesie, madé when the 
husband's father was alive, and the son, by 
his consent expressly given, endowed his 
wife with parcel of his father's lands. Litt. 
§ 40; 2 Bl. Comm. 133. 


DOWER UNDE NIHIL HABET. A 
writ of right which lay for a widow to whom 
no dower had been assigned. 


DOWLE STONES. Stones dividing 
lands, ete. Cowell. 


DOWMENT,. Io old English law. En- 
dowment; dower. 
DOWRESS. A woman entitied to dower; 


2P. Wins, 707. 


DOWRY. The property which a woman 
brings to her husband in marriage; now 
more commoniy called a “portion.” 

By dowry is meant the effects which the 
wife brings to the husband to support the 
expenses of marriage. Civil Code La. art. 
2337, 

This word expresses the proper meaning 
of the “dos” of the Roman, the “dot” of the 
French, and the “dote” of the Spanish, law, 
but is a very different thing from “dower,” 
with which it has sometimes been confounded, 

By dowry, in the Louisiana Civil »Code, is 
meant the effects which the wife brings to the 
husband to support the expenses of marriage. 
It is given to the husband, to be enjoyed by him so 
lony as the marriage shall last, and the income of 
it belongs to him. He alone has the administra- 
tion of it during marriage, and his wife cannot de- 
prive him of it. The real estate settled as dowry 
is inalienable during marriage, unless the mar- 
riage contract contains a stipulation to the con- 
trary. 6 La. Ann, 788. 


DOZHIN. L. Fr. 
twelve years of age, 
ring. Ob. St. 208. 


atenant in dower, 


Twelve; a person 
St. 18 Edw. II.; Bar- 


394 


DRAM 


DOZEN PEERS. Twelve peers as- 
sembled at the instance of the barons, in the 
reign of Henry ILI., to be privy counselors, 
or rather conservators of the kingdom. 


DRACHMA. A term employed in old 
pleadings and records, to denote a grout. 
Townsh. Pl. 180. 

An Athenian silver coin, of the value of 
about 74d. sterling. 


DRACO REGIS. The standard, ensign, 
or military colors borne in war by the an- 
cient kings of England, having the figure of 
a dragon painted thereon, 


DRACONIAN LAWS. A code of laws 
prepared by Draco, the celebrated lawgiver 
of Athens. These laws were exceedingly 
severe, and the term is now sometimes ap- 
plied tu any laws of unusual harshness. 


DRAFT. The common term for a bill of 
exchange; as being drawon by one person on 
another. 2 Bl, Comm. 467. 

An order for the payment of money drawn 
by one person on another, It is said to be 
a nomen generalisstmum, and to include all 
such orders, 1 Story, 30, 

Draft also signifies a tentative, provisional, 
or preparatory writing out of any document 
(as a will, contract, lease, etc.) for purposes 
of discussion and correction, and which is 
afterwards to be copied out in its final shape. 


DRAFTSMAN. Any one who draws or 
frames a legal document, e. g., a will, cone 
veyance, pleading, etc. 


DRAGOMAN. An interpreter employed 
in tlhe east, and particularly at the Turkish 
court, 


DRAIN, v. To make dry; to draw off 
water; torid land of its superfluous moisture 
by adapting or improving natural water- 
courses and supplementing them, when nec- 
essary, by artificial ditches. 58 Cal. 639. 


DRAIN, 7. A trench or ditch to convey 
water from web land; a channel through 
which water may flow off. 


The word has no technical legal meaning. Any 
hollow space in the ground, natural or artificial, 
where water is collected and passes off, is a ditch 
ordrain. 5 Gray, 61. 


The word “drain” also sometimes denotes 
the easement or servitude (acquired by grant 
or prescription) which consists in the right 
to drain water Uirough another’s land. See 
3 Kent, Comm. 436. 


DRAM. In common parlance, this term 
means a drink of some substance containing 


DRAM-SHOP 395 


alcohol, something which can produce intox- 
leation. 382 Tex. 228. 


DRAM-SHOP. A drinking saloon, 
where liquors are sold to be drunk on the 
premises, 


DRAMATIC COMPOSITION. A mere 
exhibition, spectacle, or scene is not a “dra- 
matic composition,” within the meaning of 
the copyright laws. 1 Abb. (U. 38.) 856. 


DRAW. In old criminal practice. 
To drag (on a hurdle) to the place of exe- 
eution. Anciently no hurdle was allowed, 
bul the criminal was actually dragged along 
the road to the place of execution. A partof 
the ancient punishment of traitors was the 
being thus drawn, 4 Bl. Comm. 92, 877. 

In mercantile law. To draw a bill of ex- 
change is to write (or cause it to be written) 
and sign it, 


DRAWBACK. In thecustomstlaws, this 
term denotes an allowance made by the gov- 
erninent upon the duties due on imported 
merchandise when the importer, instead of 
selling it here, re-exports it; or the refunding 
of such duties if already paid. This allow- 
ance amounts, in some cases, to the whole of 
the original duties; in others, to a part only. 


A drawback is a device resorted to for enabling 
a commodity affected by taxes to be exported and 
sold in the foreign market on the same terms as if 
it had not been taxed at all. It differsin this from 
a bounty, that the latter enables a commodity to be 
sold for less than its natural cost, whereas a draw- 
back enables it to be sold exactly at its natural 
cost. 


DRAWEE. A person to whom a bill of 
exchange is addressed, and who is requested 
to pay the amount of money therein men- 
tioned. 


DRAWER, The person making a bill of 
exchanve and addressing it to the drawee. 


DRAWING. In patent law. <A repre- 
sentation of the appearance of material ob- 
jects by means of lines and marks upon paper, 
eard-board, or other substance. 


DEREAWING TO EXECUTION. In 
English criminal law. Theact of drawinga 
eondemned criminal on « hurdle trom the 
place of prison to the place of execution. 4 
Bi. Comin. 377. 
on an appeal of death, the wife of the person 
killed and all his kindred drew the feion to 
execution. 


DRAWLATCHES. 
Cowell, 


Thieves; robbers, 


Where a man was hanged | 


DRIVER 


DREIT-DREIT. Droit-droit. Double 
right. A union of the right of possession 
and the right of property. 2Bl, Comm. 199. 


DRENCHES, or DRENGES. InSaxon 
law. ‘Tenants incapite. They are said tohe 
such as, at the coming of William the Con- 
queror, being put out of their estates, were 
afterwards restored to them, on their making 
it appear that they were the true owners 
thereof, and neither in auilio or consilio 
against him. Spelman. 


DRENGAGE. The tenure by which the 
drenches, or drenges, held their lands, 


DRIFT. In old Enghsh law. 
especially of cattle. 


DRIF?T-STUFF. This term signifies, not 
goods which are the subject of salvage, but 
matters floating at random, without any 
known or discoverable ownership, which, if 
cast ashore, will probably never be reclaimed, 
but will, as a matter of course, acerue to the 
riparian proprietor. 13 R. L 641. 


DRIFTLAND, DROFLAND, or 
DRYFLAND. A Saxon word, signifying 
a tribute or yearly payment made by some 
tenants to the king, or their landlords, for 
driving their cattle through a manor to fairs 
or markets. Cowell. 


DRIFTS OF THE FOREST. A view 
or examination of what cattle are in a forest, 
chase, etc., that it may be known whether it 
be surcharged or not; and whose the beasts 
are, and whether they are commonable, 
These drifts are made at certain times in 
the year by the ollieers of the forest, when 
all cattle are driven into some pound or place 
inelosed, for the before-mentioned purposes, 
and also to discover whether any cattle of 
strangers be there, which ought not to com- 
mon. Manwood, p. 2, ¢. 15. 


A driving, 


DRIFTWAY. A road or way over which 
cattle are driven. 1 Taunt. 279. 


DRINCLEAN. Sax. A _ contribution 
of tenants, in the time of the Saxons, to 
wards a potation, or ale, provided to enter- 
tain the lord, or his steward. Cowell. See 
CERVISARI. 


DRIP. A species of easement or servi- 
tude obligating one man to permit the water 
falling from another man’s house to fall 
upon his own land. 3 Kent, Comm. 436. 


DRIVER. One employed in conducting 
a coach, carriage, wagon, or other vehicle, 
with horses, mules, or other animals. 


DROFDEN 


DROFDEN, or DROTDENNE. A 
grove or woody place where cattle are kept. 
Jacob, 


DROFLAND. Sax. A quit rent, or 
yearly payment, formerly made by some ten- 
ants to the king, or their landlords, for driv- 
ing their cattle through a manor to fairs or 
markets. Cowell; Blount. 


DROIT. In French law. Right, jus- 
tice, equity, law, the whole body of law; also 
a right, 

This term exhibits the same ambiguity 
which is discoverable in the German equiv- 
alent, “recht” andthe English word “right.” 
On the one hand, these terms answer to the 
Roman “jus,” and thus indicate law in the 
abstract, considered as the foundation of all 
rights, or the complex of underlying moral 
principles which impart the character of jus- 
tice to all positive law, or give it an ethical 
content. Taken in this abstract sense, the 
terms may be adjectives, in which case they 
are equivalent to “just,” or nouns, in which 
case they may be paraphrased by the expres- 
sions “justice,” “morality,” or “equity.” 
On the other hand, they serve to point out 
@ right; that is, a power, privilege, faculty, 
or demand, inherent in one person, and inci- 
dent tipon another. In the latter signitica- 
tian, drott (or recht or right) is the correla- 
tive of “duty” or “obligation.” In the former 
sense, it may be considered as opposed to 
wrong, injustice, or the absence of law. 
Droit las the further ambiguity that it is 
sometimes used to denote the existing body 
of law considered as one whole, or the sum 
total of a number of individual !aws taken 
together. See Jus; Recmr; Riaut. 

In old English law. A writ of right, 
so called in the old books. Co. Litt. 158d. 

Law. The common law is sometimes 
termed “common droit.” Litt. § 213; Co. 
Litt. 142¢. 


DROIT-CLOSE. An ancient writ, di- 
rected to the lord of ancient demesne on be- 
half of those of his tenants who held their 
lands and tenements by charter in fee-sim- 
ple, in fee-tail, for life, or in dower. Fitzh. 
Nat. Brey. 23. 


DROIT D ACCESSION. In French 
law. ‘That property which is acquired by 
making a new species out of the material of 
another. It is equivalent to the Roman 
“specificatio.™ 


DROIT DPAUBAINE. In French law. 


396 


DROIT DE PRISE 


ceased foreigner, whether movable or im- 
movable, was confiscated to the use of the 
state, to the exclusion of his heirs, whether 
claiming ab intestato or under a will of the 
deceased. Finally abolished in 1819. 


DROIT D’EXECUTION. In French 
Jaw. The right of a stockbroker to sell the 
securities bought by him for account of a cli- 
ent, if the latter does not accept delivery 
thereof. Thesame expression is also applied 
to the sale by a stockbroker of securities de- 
posited with him by his client, in order to 
guaranty the paymentof operations for which 
the latter has given instructions. Arg. Fr. 
Mere. Law, 557. 


DROIT DE BRIS. A right formerly 
claimed by the lords of the coasts of certain 
parts of France, to shipwrecks, by which not 
only the property, but the persons of those 
who were cast away, were confiscated for the 
prince who was lord of the coast. Otherwise 
called “crott de bris sur le naufrage.” This 
ri¢ht prevailed chiefly in Bretagne, and was 
solemnly abrogated by Henry III., as duke 
of Normandy, Aquitaine, and Guienne, ina 
charter granted A, D, 1226, preserved among 
the rolls at Bordeaux. 


DROIT DE GARDE. In French fendal 
law. Right of ward. The guardianship of 
the estate and person of a noble vassal, to 
which the king, during his minority, was en- 
titled. Steph. Lect. 250, 


DROIT DE GITH. In French feudal 
Jaw. The duty incumbent on a roturier, 
holding lands within the royal domain, of 
supplying board and lodging to the king and 
to his suite while on a royal progress, Steph. 
Lect. 351. 


DROIT DE GREFFE. In old Freneh 
law. Theright of selling various offices con- 
nected with the custody of judicial records 
or notarial acts. Steph. Lect. 354, A priv- 
ilege of the French kings. 


DROIT DE MAITRISEH. Incld French 
law. A charge payable to the crown by any 
one who, after having served his apprentice- 
ship inany commercial guild or brotherhood, 
sought to become a master workman in it on 
his own account. Steph. Lect. 354. 


DROIT DE PRISH. In French feudal 
law. The duty (incumbent on a roturier) 
of supplying to the King on credit, during a 
certain period, such articles of domestic con- 
sumption as might be required for the roya! 


A rule by which all the property of a de- | household. Steph. Lect. 351. 


DROIT DE QUINT 397 DRUNKENNESS ' 
OROIT DE QUINT. In French feudal | make an order in one way, the junior judge 


law. <A relief payable by a noble vassal to 
the king as his seignewr, on every change in 
the ownership of his fief. Steph. Lect. 350. 


DROIT DE SUITE. In French law. 
The right of a creditor to pursue the debtor’s 
property into the hands of third persons for 
the enforeement of his claim. 


DROIT-DROIT. A double right; that 
is, the right of possession and the right of 
property. These two rights were, by the 
theory of our ancient law, distinct; and the 
above phrase was used to indicate the con- 
currence of both in one person, which concur- 
rence was necessary tu constitute a complete 
title to land. Mozley & Whitley. 


DROIT ECRIT. In French law. (The 
written law.) The Roman civii law, or Cor- 
Steph. Lect. 180. 


Droit ne done pluis que soit de- 
maunde. 
demanded. 


pus Juris Ctvilis. 


The law gives not more than is 
2 Inst. 286, 


Droit ne poet pas morier. Right can- 
Jenk. Cent. 100, case 95. 


DROITS CIVILS. This phrase in 
French law denotes private rights, the exer- 
tise of which is independent of the siatus 
(qualité) of citizen. Foreigners enjoy them; 
and the extent of that enjoyment is deter- 
mined by the principle of reciprocity. Con- | 
versely, foreigners may be sued on contracts 
mnade by them in France. 


not die, 


Brown, 


DROITS OF ADMIRALTY. Rights 
or perquisites of the admiralty. A term ap- 
plied to goods found derelict at sea. Applied 
also to property captured in time of war by 
non-commissioned vessels of a belligerent na- 
tion. 1 Kent, Comm. 96. 


DROITURAL. What belongs of right; 
relating to right; as real actions are either 
droitural or possessory,—droittural when the 
plaintiff seeks to recover the property. 
Finch, Law, 257. 


DROMONES, DROMOS, DRO- 
MUNDA. These were at first high ships of 
great burden, but afterwards those which 


we now call “men-of-war.” Jacob. 


DROP. In English practice. When the 
members of a court are equally divided on 
the argument showing cause against uw rule 
nist, n0 order is made, 7. ¢., the rule is nei- 
ther discharged nor made absolute, and the 
rule is said to drop. In practice, there be- 
ing a right to appeal, if has been usual to | 


Wharton, 


DROP-LETTER. A letter addressed for 
delivery in the same city ordistrict in which 
it is posted. 


DROVE-ROAD. In Seotch law. A 
road for driving cattle. 7 Bell, App. Cas. 
43, 53,57. A drift-road. Lord Brougham, 
Id. 


DROVE-STANCEH. In Scotch law. A 
place adjoining a drove-road, for resting and 
refreshing sheep anid cattle on their journey. 
7 Bell, App. Cas. 53, 57. 


DROWN. ‘To mergeor sink. “In some 
cases a right of freehold shall drown in a 
chattel.” Co. Litt. 2664, 321e. 


DRU. A thicket of wood in a valley. 
Domesday. 


DRUG. The general name of substances 
used in medicine; any substance, vegetable, 
animal, or mineral, used in the composition 
or preparation of medicines, The term is 
also applied to materials used in dyeing and 
in chemistry. See 79 N. C. 281; 53 Vt. 426. 


DRUGGIST. A dealer in drugs; one 
whose business is to sell drugs und medicines. 
In strict usage, this term is to be distin- 
guished from “apothecary.” A druggist deals 
in the uncompounded medicinal substances; 
the business of an apothecary is to mix and 
compound them. But in Ameriea the two 
words are used interchangeably, as the same 
persons usually discharge both functions. 


DRUMMER. A term applied to com- 
mercial agents who travel for wholesale 
merchants and supply the retail trade with 
goods, or take orders fur goods to be shipped 
to the retail dealer. 4 Lea, 96; 34 Ark. 557. 


DRUNGARIUS. In old European law. 
The commander of a drungus, or band of 
soldiers. Applied also toa naval commander. 
Spelman. 


DRUNGUS. In old European law. A 
band of soldiers, (globus militum.) Spelman. 


withdrawing his judgment. 


DRUNKARD. Heis a drunkard whose 
habit itis to get drunk; whose ebriety has be- 
come habitual. The terms “drunkard” and 
“habitual drunkard” mean the same thing. 
& Gray, $5. 


DRUNEKENNSSS. In medical jurispru- 
dence. The condition of 4 man whose mind 
isaffected by the immediate use of intoxicat- 
ing drinks. 


DRY-CRAFT 


DRY-CR#HET. Witcheraft; magic. 
Anc. Inst. Eng. 


DRY EXCHANGE. In English law. A 
term formerly in use, said to have been in- 
vented for the purpose of disguising and cov- 
ering usury; something being pretended to 
pass on both sides, whereas, in truth, noth- 
ing passed but on one side, in which respect 
it was called “dry.” Coweil; Blount. 


DRY-MULTURES. In Scotch law. 
Corn paid to the owner of a mill, whether the 
payers grind or not. 


DRY RENT. Lent-seck; arent reserved 
without a clause of distress. 


DRY TRUST. A passive trust; one 
which requires no action on the part of the 
trustee beyond turning over money or prop- 
erty to the cestué que trust. 


DUARCHY. A form of government 
where two reign jointly. 


Duas uxores eodem tempore habere 
non licet. It is not lawful to have two 
wives at thesame time. Inst. 1, 10,6; 12). 
Comm. 436. 


DUBITANS. Doubting. 
dubitans. 1 Show. 364. 


DUBITANTE. Doubting. Is affixed to 
the name of a judge, in the reports, to signify 
that he doubted the decision rendered. 


DUBITATUR. It is doubted. A word 
frequently used in the reports to indicate 
that a point ig considered doubtful. 


DUBITAVIT. Doubted. Vaughan, C. 
J., dubitavit. Freem. 150. 


DUCAT, A fvreign coin, varying in 
value in different countries, but usually worth 
about $2.26 of our money. 


Dobbin, J., 


DUCATUS. In feudal and old English 
law. A duchy, the dignity or territory of a 


duke. 


DUCES TECUM. (Lat. Bring with 
you.) The name of certain species of writs, 
of which the subpena duces tecum is the most. 
usual, requiring a party who is summoned to 
appear in court to bring with him some doc- 
ument, piece of evidence, or other thing to 
be used or inspected by the court. 


DUCES TECUM LICET LANGUI- 
DUS. (Bring with you, althongh sick.) In 
practice. An ancient writ, now obsolete, 
directed to the sheriff, upon a return that he 
could not bring his prisoner without danger 


398 


DUE-BILL 


of death, he being adeo languidus, (so sick:;) 
whereupon the court granted a habeas corpus 
in the nature of a duces tecum licet langut- 
dus. Cowell; Blount. 


DUCHY COURT OF LANCASTER. 
A tribunal of special jurisdiction, held be- 
fore the chancellor of the duchy, or his dep- 
uty, concerning all matters of equity relating 
to lands holden of the crown in right of the 
duchy of Lancaster; which is a thing very 
distinct from the county palatine, (which 
has also its separate chancery, for sealing of 
writs, and the like,) and comprises much 
territory which lies at a vast distance from 
it; as particularly a very large district sur- 
rounded by the city of Westminster. The 
proceedings in this court are the same as 
were those on the equity side of the court of 
chancery, so that it seems not to bea court of 
record; and, indeed, it has been holden that 
the court of chancery has a concurrent juris- 
diction with the duchy court, and may take 
cognizance of the same ciuses. The appeal 
from this court lies to the court of appeal. 


| Jud. Act 1873, § 18; 3 Bl. Comm. 78. 


DUCHY OF LANCASTER. Those 
lands which formerly belonged to the dukes 
of Lancaster, and now belong to the crown 
in right of theduchy. The duchy is distinct 
from the county palatine of Lancaster, and 
includes not only the county, but also much 
territory at a distance from it, especially the 
Savoy in London and some Jand near West- 


minster. 38 Bl. Comm. 78. 
DUCKING-STOOL. See CastTIgaTory. 
DUCROIRE. In French law. Guar- 


anty; equivalent to del credere, (which see.) 


DUE. 1. Just; proper; regular; lawful; 
sufficient; as in the phrases “due care,” “due 
process of law,” “due notice.” 

2. Owing; payable; justly owed. That 
which one contracts to pay or perform to 
another; that which law or justice requires 
to be paid or done. 

3. Owed, or owing, as distinguished from 
payable. A debt is often said to be due from 
a person where he is the party owing it, or 
primarily bound to pay, whether the time for 
payment has or has not arrived. 

4, Payable. A bill or note is commonly 
said to be due when the time for payment 
of it has arrived. 6 Pet. 29, 36. 


DUE-BILL. A brief written acknowl- 
edgment of adebt. Itis not made payable 
to order, likea promissory note. See l. 0. U. 


| 
i 


DUE CARE 899 


DUE CARE. 
cient care, so far as the circumstances de- 
mand it; the absence of negligence. 


This term, a3 usually understood in cases where 
the gist of the action is the defendant's negligence, 
implies not only that a party has not been negli- 
gent or carcless, but that he has been guilty of no 
violation of law in relation to the subject-matter 
or transaciion which constitutes tho cause of ac- 
tion. Hvyidencetbat a party is cuilty of a violation 
of law supports the issue of a want of proper care; 
nor ean it be doubted that in these and similar ac- 
tions the averment in the declaration of the use of 
dua care, and the denial of it in the auswer, prop- 
erly and distinctly put in issue the legality of the 
conduct of the party as contributing to the acci- 
dent or injury which forms the groundwork of the 
action. No specific avyerment of the particular 
unlawful act which caused or contributed to pro- 
duce the result complained of should, in such 
cases, be dsemed necessary. 10 Allen, 18. Sea, 
also, Id. 532. 


DUE COURSE OF LAW. This phrase 
is synonymous with “due process of law,” or 
“the law of the land,” and the general defi- 


‘nition thereof is “law in its regular course 


of administration through courts of justice;” 
and, while not always necessarily confined to 
judicial proceedings, yet these words have 
such a signification, when used to designate 
the kind of an eviction, or ouster, from reai 
estate by which a party is dispossessed, as to 
preclude thereunder proof of a constructive 
eviction resulting from the purchase of a 
paramount title when hostilely asserted by 
the party holding it, 19 Kan. 542, Sae, 
alse, 34 Ala. 236; 11 Wend. 635; G3 Ala. 4386; 
88 Miss. 424; 3 Stew. 108; 4 Dill. 266. 


DUE NOTICE. No fixed rule can be 
established as to what shall constitute “due 
notice.” “Due” is a relative term, and must 
be apjlied to each case in the exercise of the 
discretion of the court in view ofthe particu- 
Jar circumstanees. 1 McAll. 420. 


DUE PROCESS OF LAW. Lawin its 
regular course of adininistration through 
courts of justice. 3 Story, Const, 264, 661. 

“Due process of law in each particalar case 
means such an exercise of the powers of the 
government as the settled maxims of law per- 
mit and sanction, and under such safeguards 
for the protection of individual rights as 
those maxims prescribe for the class of cases 
to which the one in question belongs.” 
Cooley, Const. Lim. 441. See, also, 12 N. 
XY. 209; 5 Mich. 251; 6 Cold. 283; 49 Cal. 
403. 

Whatever difficulty may be oxperisnced in giy- 
ing to those terms a definition which will embrace 


every permissibie exertion of power affecting pri- 
vate rights, and exclude such us is forbidden, there 


DULY 


Just, proper, and suffi- ‘| can ba no doubt of their meaning when applied ta 


judicial proceedings. They then mean a course of 
legal proceedings according to those rules and 
principles which have been established in our sys- 
tems of jurisprudence for the enforcement and 
protection of private rights. To give such pro- 
ceedings any validity, there must be a tribunal 
competent by its constitutioun—that is, by the 
law of its creation—to pass upon the subject-mat- 
ter of the suit; and, if that involves merely a de- 
termination of the personal liability of the defend- 
ant, be must be brought within its jurisdiction by 
service of process within the state, or his volun- 
tary appearance, 95 U.S, 723, 

Due process of law implies the right of the per- 
807 aftected thereby to be present before the tri- 
bunal whick pronounces judgment upon the ques- 
tion of life, liberty, or property, in its most com- 
prehensive sense; to be heard, by testimony or 
otherwise, and to have the rightof controyerting, 
by proof, every material fact which bears on ths 
question of rightin the matter involved. If any 
question of fact or liability be conclusively pre- 
sumed against him, this is not due process of law. 
58 Ala. 599. 

These phrages in the constitution do not mean 
the general body of the Jaw, common and statute, 
as it was at the time the constitution took effect; 
for that would seem to deny the right of the legis- 
lature to amend or repeal the law. They refer to 
certain fundamental rights, which that system of 


| jurisprudence, of which ours is a derivative, has 


always recognized. SU Miss. 408. 

“Due process of law,” as used in the constitu- 
tion, cannot mean less than a prosecution or suit 
instituted and conducted according to the pre- 
scribed forms and solemnities for ascertaining 
gnilt, or determining the title to property. $8 N, 
Y. 511, 517; 4 Hill, 140; 10 N. Y. 874, 397. 


DUEL. A duel is any combat with dead- 
ly weapons, fought between two or more 
persons, by previous agreement or upon a 
previous quarrel. Pen. Code Cal. § 225. 


DUELLUM. The trial by battel or judi- 
cial combat. See Barrer. 


DUES. Certain payments; rates or taxes. 


DUKE, in English law, is a title of no- 
bility, ranking immediutely next to the 
Prince of Wales. Itis only a title of digni- 
ty. Conferring it dves not give any domain, 
territory, or jurisdiction over the place 
whence the title is taken. Duchess, the con- 
sort of aduke. Wharton. 


DUEEH OF EXETER’S DAUGHTER. 
The name of a rack in the Tower, se called 
after a minister of Henry VI., who sought 
to introduce it into England. 


DULOCGRACY. A government where 
servants and slaves have so much license 
and privilege that they domineer. Wharton, 


DULY. In due or proper form or man- 
ner. 


DULY 


Regularly; upon a proper foundation, as 
distinguished from mere form. 


DUM. Lat, While; as long as; until; 
upon condition that; provided that. 


DUM BENE SE GESSERIT., While 
he shall conduct himself well; during good 
behavior. Expressive of a tenure of office 
not dependent upon the pleasure of the ap- 
pointing power, nor for a limited period, but 
terminable only upon the death or miscon- 
duct of the incumbent. 


DUM FERVET OPUS. While the 


work glows; in the heat of action. 1 Kent, 
Comm, 120. 
DUM FUIT IN PRISONWA. In En- 


glish law. A writ which lay for a man who 
had aliened lands under duress by imprison- 
ment, to restore to him his proper estates, 
2 Inst. 482. Abolished by St.3 & 4 Wm. 
TCs ay. 


DUM FUIT INFRA ATATEM. 
(While he was within age.) In old English 
practice. A writ of entry which formerly 
lay for an infant after he had attained his 
full age, to recover lands which he had 
aliened in fee, in tail, ov for life, during his 
infancy; and, after his death, his heir had 
the same remedy. Reg. Orig. 2280; Fitzh. 
Nat. Brev. 192, G; Litt. § 406; Co. Litt. 
2470. 


DUM NON FUIT COMPOS MENTIS. 
The name of a writ which the heirs of a per- 
son who was 707% compos mentis, and who 
aliened his lands, might have sued out to re- 
store him to his rights. Abolished by 3&4 
Wm. IY. ¢. 27. 


DUM RECENS FUIT MALEFICI- 
UM. While the cffense was fresh. A term 
employed in the old law of appeal of rape. 
Bract. fol. 147. 


DUM SOLA. While sole, orsingls. Dum 
sola fuerit, while she shall remain sole. Dum 
sola et casta vixverit, while she lives single 
and chaste. Words of limitation in old con- 
veyances. Co. Litt. 235c. 
generally to an unmarried woman in connec- 
tion with something that was or might be 
done during that condition. 


DUMB. One whocannot speak; a person 
who is mute. 


DUMB-BIDDING. In sales at auction, 
when the minimum amount which the own- 
er will take for the artiele is written on a 
piece of paper, and placed by the owner un- 


400 


Also applied | 


| 


DUODECIMA MANUS 


der a candlestick, or other thing, and it is 
agreed that no bidding shall avail unless 
equal to that, this is called “dumb-bidding.” 
Bab. Auct. 44. 


DUMMODO. Provided; provided that. 
A word of limitation in the Latin forms of 
conveyances, of frequent use in introducing 
a reservation; as in reserving a rent. 


DUN. A mountain or high open place, 
The names of places ending in dun or don 
were either built on hills or near them in 
open places. 


DUNA. Inoldrecords. A bank of earth 
cast up; the side of aditeh. Cowell. 


DUNGEON. Such an under-ground 
prison or cell as was formerly placed in the 
strongest part of a fortress; a dark or sub- 
terraneous prison. 


DUNIO. A double; a kind of base coin 
less than a farthing. 


DUNNAGE. Pieces of wood placed 
against the sides and bottom of the hold of a 
vessel, to preserve the cargo from the effect 
of leakage, according to its nature and qual- 
ity. Abb. Shipp. 227, 

There is considerable resemblance between 
dunnage and ballast. The latter is used tor 
trimming the ship, and bringing it down to 
a draft of water proper and safe for sailing. 
Dunnage is placed under the cargo to keep 
itfrom being wetted by water getting into 
the bold, or between the different parcels to 
keep them from bruising and injuring each 
other. 13 Wall. 674. 


DUNSETS. People that dwell on hilly 
places or mountains. Jacob. 


Duo non possunt in solido unam rem 
possidere. Two cannot possess one thing 
in entirety. Co. Litt, 368. 


Duo sunt instrumenta ad omnes res 
aut confirmandas aut impugnandas, ra- 
tio et authoritas. There are two instru- 
ments for confirming or impugning all 
things,—reason and authority. 8 Coke, 16. 


DUODECEMVIRALK JUDICIUM. 
The trial by twelve men, or byjury. Applied 
to juries de medietale lingue, Mol. de Jure 
Mar. 448. 


DUODECIMA MANUS. Twelve 
hands. The oaths of twelve men, including 
himself, by whom the defendant was ailowed 
te make his law. 3 Bl. Comm. 343. 


DUODENA 


DUODENA. In old records. 
twelve men. Cowell. 


A. jury of 


DUCDENA MANU. A dozen hands, 
(. é., twelve witnesses to purge a criminal of 
an offense. 


Duerum in solidum domininm vel 
possessio esse non potest. Ownership or 
possession in entirety cannot be in two per- 
sons of the same thing. Dig. 13, 6, 5, 15; 
Maekeld. Rom, Law, § 245. Bract. fol. 286. 


DUPLA. In the civil law. Double the 


price of athing. Dig. 21, 2, 2. 


DUPLEX QUERELA. Double com- 
plaint. An ecclesiastical proceeding, which 
is in the nature of an appeal from an ordi- 
nary’s refusal to institute, to his next im- 
mediate superior; as from a bishop to the 
archbishep. If the superior adjudges the 
eause of refusal to be insufficient, he will 
prant institution to the appellant. DPhillim, 
Eee. Law, 440. 


DUPLEX VALOR MARITAGII. In 
old English law. Double the value of the 
marriage. While an infant was in ward, the 
guardian bad the power of tendering him or 
her a suitable match, without disparage- 
ment, which if the infants refused, they for- 
feited the value of the marriage to their 
guardian, that is, so much as a jury would 
assess or any One would give to the guardian 
for such an alliance; and, if the infants mar- 
Tied themselves withoub the guardian’s con- 
sent, they forfeifi«| double the value of the 


marriage. 2 73]1.Gomm. 70; Litt. § 110; Co. | 
Litt. 82. 
DUPLICATE. When two written docu- 


ments are substantially alike, so that each 
might be a copy or transcript from the other, 
while both stamd on the same footing as 
original instruinents, they are called “dupli- 
cates.” Agreements, deeds, and other docn- 
ents are frequently executed in duplicate, 
in order that each party may have an orig- 
inal in his possession. 

A duplicate is sometimes defined to ba the 
“copy” of a thing, but, though generally a copy, a 
duplicate differs from a mere copy, in having all 
the validity of an original, Nor, it ssems, need it 
be an exact copy. Defined also to be the “counter- 
part” of an instrument; but in indeutureés there is 
B distinction between cournterpuris executed by 
the several parties respectively, each party affix- 
ing his or her seal to only one counterpart, and 
dupticate originals, each executed by all the par- 
ties. 7 Man. & G. $1, note. The old indentures, 
charters, or chirographs scem to have had the 
character of duplicates. Burrill. 

AM. DICT. LAW—26 


401 


H 


DURANTE MINORE 4iTATE 


In Finglish law, The certificate of dis- 
charge given to an insolvent debtor who 
takes the benefit of the act for the relief ot 
insolvent delitors. 

The ticket given by a pawnbroker to the 
pawner of a chattel. 


DUPLICATE WILL. <A term used in 
Engiand, where a testator executes two 
copies of his will, one to keep himself, and 
the other to be deposited with another per- 
son. Upon application for probate of a du- 
plicate will, both copies must be deposited in 
the registry of the court of probate. 


DUPLICATIO. In the civil law. The 
defendant's answer to the plaintiff's replica- 
tien; corresponding to the rejoinder of the 
common law. 


Duplicationem possibilitatis lex non 
patitur. The law does not allow the doubling 
of a possibility. 1 Rolle, 321, 


DUPLICATUM JUS. 
Bract. fol. 25835. 


Double right. 
See Drorr-Drort. 


DUPLICITY. The technical fault, in 
pleading, of uniting two or more causes of 
action in one count in a writ, or two or more 
grounds of defense in one plea, or two or 
more breaclies in a replication. 


DUPLY, n. (From Lat. duplicatio, q.v.) 
In Scotch pleading. The defendant’s anawer 
to the plaintiff's replication. 


DUPLY, v. In Scotch pleading. To re- 
join. “Itis dupiyed by the panel.” 3 State 
Trials, 471. 


DURANTE. Lat. During. A word of 
limitation in old conveyances, Co, Litt. 2344, 
Durante viduttaie, during widowhood. Du- 
rante virginitate, during virginity. Durante 
vita, during lite. 


DUBANTE ABSENTIA. During ab- 
sence. In some jurisdictions, administration 
of a decedent's estate is said to be granted de- 
rante absentia in eases where the absence of 
the proper proponents of the will, or of an 
executor, delays or imperils the settlenent of 
the estate. 


DURANTE BENE PLACITO, Dur- 
ing good pleasure. The ancient tenure of 
English judges was durante bene piacite. 1 
Bl, Comm. 267, 342. 


DURANTE MINORE ATATEH. Dur- 
ing minority, 2 Bi. Comm. 503; 5 Coke, 29, 
00. Words taken from the old form of let- 
| ters of administration. 5 Coke, ubi supra. 


“F1 


M 


DURANTE VIDUITATE 


DURANTE VIDUITATE. During 
widowhood, 2 Bl. Comm. 124. Durante 
caste. riduitate, during chaste widowhood. 
10 East, 520. 


DURBAR. In India. A court, audience, 
or levee. Mozley & Whitley. 


DURBRESS, 2. To subject to duress, A 
word used by Lord Bacon. “If the party 
duressed do make any motion,” ete. Bac. 
Max. 89, rep. 22. 


DURESS, 2. Unlawful constraint exer- 
eised upon a man whereby he is foreed to do 
some act against his will, Jt may he eilher 
“duress of imprisonment,” where the persun 
is deprived of his liberty in order to force him 
to compliance, or by violence, beating, or 
other actual injury, or duress per minas, 
consisting in threats of imprisonment or 
great physical injury or death. Duress may 
also include the same injuries, threats, or 
restraint exercised upon the man’s wife, child, 
or parent, 

Duress consists in any illegal imprison- 
ment, or legal imprisonment used for an ille- 
gal purpose, or threats of bodily or other 
harm, or other means amounting to or tend- 
ing to coerce the will of another, and actu- 
ally inducing him to do an act contrary to 
his free will. Code Ga. 1882, § 2637. 

By duress, in its more extended sense, is meant 
that degree of severity, either threatened or im- 
peuding cr actually inflicted, which is suficient to 
overcome the mind and will of a person of ordina- 
ry firtoness. Duress pes minas is restricted to 
fear of loss of life, or of mayhem, or loss of limb, 
or other remediless harm to the person. 3 Me. 
559. 

DURESS OF IMPRISONMENT, 
The wrongful imprisonment of a person, or 
the illegal restraint of his liberty, in order to 
compel him to do seme act. J BI. Comm. 
130, 131, 186, 1387; 1 Steph. Comm. 137; 2 
Kent, Comm, 453, 


DURESS PER MINAS. Duress by 
threats. The use of threats and menaces to 
compel a person, by the fear of death, or 
grievous bodily harm, as mayhem or loss of 
limb, to dao some lawful act, or to commita 
misdemeanor. 1 Bl. Comm. 180; 4 BI. 
Comm, 30; 4 Steph. Comm. 83. See Merus. 


DURESSOR, One who subjects another 
to duress; one who compels another to doa 
thing, as by menace. Lac. Max. 90, reg. 22. 


DURHAM. A county palatine in Eng- 
land, the jurisdiction of which was vested 
in the Bishop of Durham until the statute 6 


402 


DUTY 


& 7 Wim. IV. c. 19, vested it as a separate 
franchise aud royalty inthe erown. The ju- 
risdiction of the Durham court of pleas was 
transferred to the supreme court of judica- 
ture by the judicature act of 1873. 


DURSLEY. Inold Englishlaw. Blows 
Without wounding or bloodshed; dry blows. 
Blount, 


DUSTUCK. A term used in Hindostan 
for a passport, perinit, or order from the En- 
glish East Indian Company. It generally 
meant a permit under their seal, exempting 
goods from the payment of duties. Ene, 
Lond. 3 


DUTCH AUCTION. A method of sale 
by auction which consists in the public offer 
of the property at a price beyond its value, 
and then gradualiy lowering the price until 
some one becomes the purchaser. 28 Ohio 
St. 482. 


DUTIES. In its most usual sicnification 
this word is the synonym of imposis or cug- 
toms; buf it is sometimes used in a broader 
sense, aS including all manner of taxes, 
charges, or governmental impositions. 


DUTY. Inits use in jurisprudence, this 
word is the correlative of right. Thus, 
wherever there exists a right in any person, 
there also rests a corresponding duty upon 
some uther person or upon all persons gener- 
ally. Butitis also used, in a wider sense, 
to designate that class of moral obligations 
which lie outside the jural sphere; such, 
namely, as rest upon an imperative ethical 
basis, but have not been recognized by the 
law as within its proper province for pur- 
poses of enforcement or redress. Thus, 
gratitude towards a benefactor is a duty, but 
its refusal will not ground an action. In 
this meaning “duty” is the equivalent of 
“moral obligation,” as distinguished froma 
“legal obligation.” 

As a technical term of the law, “duty” 
signilies a thing due; that which is due from 
a person; that whicha person owes to anoth- 
er. An cbligalion to do a thing. <A word 
of more extensive signification than “debt,” 
although both are expressed by the same 
Latin word “debitum.” 20 Vt. 725, 733. 

But in practice it is commonly reserved ag 
the designation of those obligations of per- 
formance, care, or observance which rest up- 
on a person in an official or fiduciary capac- 
ity; as the duiy of an executor, trustee, man- 
ager, etc, 

It also denotes a tax or impost due to the 


DUUMVIRI 


government upon the importation or expor- 
tation of gouds. 


DUUMVIRI. (From duo, two, and virt, 
men.) A general appellation among ile an- 
cient Romans, given to any magistrates 
elected in pairs to fill any office, or perform 
any function. Brande, 

Diumeviri municipales were two annual 
magistrates in the towns and colonies, hav 
ing judicial powers. Calvin. 

Duumeiri nacales were officers appointed 
to man, equip, and refit the navy. Id. 


DUX. In Roman law. A leader or 
military commander. The commander of an 
army. Dig. 3, 2, 2, pr. 

In feudal and old Huropean law. 
Duke; a title of honor, or order of nobility. 
1 Bl. Comm. 897; Crabb, Eng. Law, 286. 

In tater law. A military governor of a 
province. See Cod. 1, 27, 2. A military 
officer having charge of the borders or fron- 
tiers of the empire, called “daa limitis.” Cod. 
1, 49, 1, pr. At this period, the word began to 
be used as a title of honor or dignity. 


DWELL. To have an abode; to inhabit; 
to live in a place. 


DWELLING-HOUSE. The house in 
which a man lives with his family; a resi- 
dence; the apartment or building, or group 
of buildings, occupied by a family as a place 
of residence. 

In conveyancing. Includes all buildings 
attached to or connected with the house. 2 
Hil. Real Prop. 338, aud note. 

In the law of burglary. A honse in 
which the oceupier and bis family usually re- 
side, or, in other words, dwell and lie in. 
Whart. Crim. Law, 357. 


DWELLING-PLACEK. This term is not 
synonymous with a “place of pauper settle- 
ment.” 49 N. H. 553. 

Dwelling-place, or home, means some per- 
manent abode or residence, with intention to 
remain; and ig not synonymous with “domi- 
eile,” as used in international law, but has 


amore limited and restricted meaning. 19 
Me. 298. 
DYING DECLARATIONS,  State- 


ments made by a person whe is lying at the 
point of death, and is conscious of his ap- 
proaching dissolution, in reference to the 


403 


i 


DYVOUR’S WABIT 


manner in whieh he received the injuries of 
which he is dying, or other immediute cause 
of his death, and in reference to the person 
who inflicted such injuries or the connection 
with such injuries of a person who is charged 
or suspected of having committed them; 
which statements are admissible in evidence 
in a trial for homicide where the killing of 
the declarant is the crime charged to the de- 
fendant. 


DYING WITHOUT ISSUE. At eom- 
mon law this phrase invports an indefinite 
failure of issue, and not adying without issue 
surviving at the time of the death of the first 
taker, But this rule has been changed in 
some of the states, by statute or decisions, 
and in England by St. 7 Wm. IV., and 1 
Vict. c. 26, § 20, 

The words “die without issue,” aud “die with- 
out leaving issue,” in a devise of real estate, im- 
portan indefinite failure of issue, and not the fail- 
ure of issue at the death of the first taker, And 
no distinction is to be made between the werds 
“without issue” and “without leaving issue.” 32 
Barb, 828; 20 How. Pr 41; 3 Port. 69; 6 Port, 819. 

In Couuecticut, it has been repeatedly beld that 
the expression “dying without issue, ” and like ex- 
pressions, have reference to the time of the deuth 
of the party, and not to an indefinite failure of is- 
Bue. 34 Me. 176. 

Dying without children imports noi a failure of 
issue ub any indefinite future period, but a leaving 
no children at the death of the legutes. 13.N. J. 
Eq. 105. 

DY KH-REED, or DYKE-REEVE. 
An otlicer who has the care and oversight of 
the dykes and drains in fenny counties. 


DYSNOMY. Bad legislation; the enact- 
ment of bad laws. 


DYSPEPSIA. A state of the stomach in 
whieh ifs functions aro disturbed, without 
the presenee of other diseases, or when, if 
other diseases are present, they are of minor 
importance. Dungl. Med. Dict. 


DYVOUR. InScotehlaw. <A bankrupt, 


DYVOUR’S HABIT. in Scotch Jaw. 
A habit which debtors who are set free on a 
cessio bonoriim are obliged to wear, unless 
in the summons and process of eessiv it ba 
libeled, sustained, and proved that the bank- 
ruptey proceeds from misfortune. And bank- 
rupts are condemned to submit to the habit, 
even where no suspicion of fraud lies against 
then, if they have been dealers in an illicit 
trade. Ersk. Prin. 4, 3, 18. 


K 


M 


& 404 EAR-MARK 


E. 


KE. As an abbreviation, this letter may | Co. Litt. 289. Those things which are prop- 
stand for “Exchequer,” “English,” “Ed- | erly transacted in our court ought to be com- 
ward,” “Equity,” “East, ) Eastern,” | mitted to a due execution. 


“Easter,” or “Ecclesiastical.” ; ‘ , 
Ea que raro accidunt non temere in 


E. A Latin preposition, meaning from, | 2gendis negotiis computantur. Those 
out of, after, or according. It occurs in| things which rarely happen are not to be 
many Latin phrases; bat (in this form) only | taken into account in the transaction of busi- 
before a consonant. When the initial of the | ness, without sutiicient reason. Dig. 50, 17, 
following word is a vowel, ex is used. 64. 


EACH, The effect of this word, used in 
the covenants of a bond, is to create a sev- 
eral obligation. 3 Dowl. & R, 112; 5 Term 
522; 2 Day, 442; 104 Mass, 217. 


EH CONTRA. Fromthe opposite; on the 
contrary. 


E CONVERSO. Conversely. On the 


other hand; on the contrary. Equivalent to : , et 
See Eadem causa diversis rationibus co- 


ram judicibus ecclesiasticis et seculari- 
E. G. An abbreviation of evempli gra- | bus ventilatur. 2 Inst. 622. The same 


tia. For the sake of an example. cause is argued upon different principles be- 
fore ecclesiastical and secular judges. 
E MERA GRATIA. Out of mere grace 
or favor. Hadem est ratio, eadem est lex. The 


me reason, the same law. 7 Pick. 493. 
BE PLURIBUS UNUM. Oneontof|" 


many. The motto of the United States of Hadem mens presumitur regis que 
America. est juris et qure esse dehet, presertim 
in dubiis. Hob. 154. The mind of the 
sovereign is presumed to be coincident with 
that of the law, and with that which it ought 
to he, especially in ambiguous matters. 


EAGLE. A gold coin of the United 
States of the value of ten dollars, 


HA. Sax. The water or river; also the 
mouth of a river on the shore between high 
and low water-mark. 


Ka est accipienda interpretatio, quse 
vitio caret. Thatinterpretation is to be re- 
ceived [or adopted] which is free from fault 
[or wrong.} The law will not intend a EALDER, or EALDING. InoldSaxon 
wrong, Bac. Max. 17, (in reg. 3.) law. An elder or chief. 


BA INTENTIONE. With that intent. BALDERMWAN, or EALDORMAN. 
Held not to make a condition, but a confi- | The name of a Saxon magistrate; alderman; 
dence and trust. Dver, 1380, analogous to ea7t among the Danes, and sen- 


. ator among the Romans. See ALDERMAN, 
Ea gue, commendandi causa, in ven- 


ditionibus dicuntur, si palam appareant, EBALDOR-BISCOP. An archbishop. 
venditorem non obligant. Those things . ; 
which are said on sales, in the way of com- HALDORBURG,. Sax. Themetropolis; 


mendation, if [the qualities of the thing sold] | the chief city. Obsolete. 
appear openly, do not bind the seller. Dig. EALEHUS. (Fr, eale, Sax., ale, and hus, 
18, 1, 48, pr. house.) An ale-house. 

Ka qure dari impossibilia sunt, vel 
gue in rerum natura non sunt, pro 
non adjectis habentur. Those things 
which are impossible to be given, or which BAR GRASS. In English law. Such 
are not in the nature of things, are regarded | grass which is upon the land after the mow- 
as not added, [as no part of an agreement.} | mg, until the feast of the Annunciation after. 
Dig. 50, 17, 135. 3 Leon. 213. 


Ea que in curia nostra rite acta sunt EAR-MARK. A mark put upona thing 
debitz oxecutioni demandari debent. | to distinguish it from another. Originally 


EALHORDA. Sax. The privilege of 
assising and selling beer. Obsolete. 


EAR-MARK 


40 


Hi EASEMENT 


and literally, a mark upon the ear; a mode of | services or labor without the aid of capital. 


marking sheep and other animals. 

Property is said to be ear-marked when it 
ean be identified or distinguished from other 
property of the same nature. 

Money has no ear-mark, but it is an ordi- 
nary term for a privy mark made by any one 
on a colin. 

EAR-WITNESS. In the taw of evidence, 
One who attests or can attest anything as 
heard by himseif. 


BARD. A title of nobility, formerly the 
highest in England, now the third, ranking 
between a marquis and a viscount, and cor- 
responding with the French “comte” and the 
German “graf.” The title originated with 
the Saxons, and is the most ancient of the 
English peerage. 
first made this title hereditary, giving it in 
fee Lo his nobles; and allotting them for the 
Bupport of their state the third penny out of 
the sheriff’s court, issuing out of all pleas of 
the shire, whence they had their ancient title 
“shiremen.” At present the title is aecom- 
panied by no territory, private or judicial 
rights, but merely confers nobility and an 
hereditary seat in the house of lords. Whar- 
ton. 


EARL MARSHAL OF ENGLAND. 
A great officer of state who had anciently 
several courts under his jurisdiction, as the 
court of chivalry and the court of honor. 
Under him is the herald’s office, or college of 
arms. He was also a judge of the Marshalsea 
court, now abolished. ‘This office is of great 
antiquity, and has been for several ages 
hereditary in the family of the Howards. 3 
Bl. Comm. 68, 103; 3Steph. Comm. 335, note. 


EARLDOM. The dignity or jurisdiction 
of anearl. The dignity only remains now, 
as the jurisdiction has been given over to the 
sheriff. 1 Bl. Comm. 339. 


EARLES-PENNY. Money given in 
part payment. See EAxNesr. 


EARNEST. The payment of a part of 
the price of goods sold, or the delivery of 
part of such goods, for the purpose of binding 
the contract. 108 Mass, 54. 

A token or pledge passing between the par- 
ties, by way of evidence, or ratification of the 
pale. 2 Kent, Comm. 495, note. 


EARNINGS. This term is used to denote 
a larger class of credits than would be in- 
eluded in theterm “wages.” 102 Mass. 235; 
115 Mass. 165. 

The gains of the person derived from his 


William the Conqueror | 


20 Wis. 380. See, also, 46 N. TI. 48. 

“Gross” earnings are the total receipts be- 
fore deducting expenditures. “As a general 
preposition, net earnings are the excess of the 
gross earnings over the expenditures defrayed 
in producing them, aside from, and exelusive 
of, the expenditure of capital laid out in con- 
structing and equipping the works them- 
selves.” 99 U.S. 420. See, also, 44 Ohio 
St. 515, 7 N. E. Rep. 189; 54 Conn. 168, 
5 Atl. Rep. 851. 

“Surplus” earnings of a company or cor- 
poration means the amount owned by the 
company over and aboveits capital and actual 
liabilities. 76 N. Y. 74. 


EARTH. Soil of all kinds, including 
gravel, clay, loam, and the like, in distinction 
from the firm rock. 75 N.. Y. 76, 


BASEMENT. A right in the owner of 
one parcel of land, by reason of such owner- 
ship, to use the land of another for a special 
purpose not inconsistent with a general prop- 
erty in the owner. 2 Washb. Real Prop. 25. 

A privilege which the owner of one adja- 
cent tenement hath of another, existing in 
respect of their several tenements, by which 
that owner against whose tenement the priv- 
ilege exists is obliged to suffer or got to do 
something on or in regard to his own Jand 
for the advantage of him in whose land the 
privilege exists. Termes de la Ley. 

A private easement is a privilege, service, 
or convenience which one neighbor haa of 
another, by prescription, grant, or necessary 


| implication, and without profit; as a way 


over his land, a gate-way, water-course, and 
the like. Kitch. 105; 3 Cruise, Dig. 484. 

The land against which the easement or privi- 
lege exists is called the “servient” tenement, and 
the estate to which itis annexed the “dominant” 
tenement; and their owners are called respective- 
ly the “servient” and “dominant” owner. These 
terms are taken from the civil law. 

At the presentday, the distinction between 
an “easement” and a “license” is well set- 
tled and fully recognized, although it be- 
comes difficult in some of the cases to dis- 
cover a substantial difference between them. 
An easement, it has appeared, is a liberty, 
privilege, or advantage in land, without 
profit, and existing distinct from the owner- 
ship of the soil; and it has appeared, also, 
that aclaim for an easement must be found- 
ed upon a deed or writing, or upou preserip- 
tion, which supposes one. It isa permanent 
interest in another’s land, with a right to en- 
joy it fully and without obstruction. A 


= 


EASEMENT 406 


license, on the other hand, is a bare authori- 
ty to do a certain act or series of acts upon 
another’s land, without possessing any es- 
tate therein; and, it being founded in per- 
sonal confidence, it is not assiguable, and it 
is gone if the owner of the land who gives 
the licenso transfers his title to another, or 
if either party die. 3 Pin. 415. 

Classification. Easements are classified 
as affirmative or negative; the former being 
those where the servient estate must permit 
something to be done thereon, (as to pass 
over it, or to discharge water upon it;) the 
latter being those where the owner of the 
servient estate is prohibited from doing 
something otherwise lawful upon his estate, 
because it will affect the dominant estate, (as 
interrupting the light and air from the latter 
by building on the former.) 2 Washb. Real 
Prop. 301, 

They are also either continous or discon= 
tinuous, the former depending on some nat- 
ural conformation of the servient tenement, 
or artilicial structure upon it, which consti- 
stutes the easement or the means of enjoy- 
ing it; the latter being suchas have no means 
specially constructed or appropriated for their 
enjoyment, and are enjoyed at intervals, leav- 
ing in the mean time no visible signs of their 
existence. 18N. J. Eq. 262. 

Masements are also classified as private or 
public, according as their enjoyment belongs 
toan individual or to the community. 

‘hey may also be either of necessity or af 
conventence. ‘he former is the ease where 
the easement is indispensable to the enjoy- 
ment of the dominant estate; the latter, 
where the easement increases the facility, 
gomfort, or convenience of the enjoyment of 
the dominant estate, or of some right con- 
nected with it. 

An appurtenant (or appendant) easement 
is one which is attached to and passes with 
the dominant lensment as an appurtenance 
thereof. 


HAST. In the customs laws of the Unit- 
ed States, the term “countries east of the 
Cape of Good Hope” means countries with 
which, formerly, the United States ordinarily 
carried on commercial intercourse by pass- 
ing around that cape. 101 U.S. 790. 


EAST GREENWICH. The name of a 
royal manor in the county of Kent, Eng- 
land; mentioned in royal grants or patents, 
as descriptive of the tenure of-free socage. 


BAST INDIA COMPANY. The East 
India Company was originally established for 


EAT INDE SINE DIE 


prosecuting the trade between England and 
India, which they acquired a right to carry 
on exclusively. Since the middle of the last 
eentury, however, the company’s political 
affairs had become of more importance than 
their commerce. In 1858, by 21 & 22 Viet. 
c. 106, the government of the territories of 
the company was transferred to the crown, 
Wharton. 


EASTER. A feast of the Christian 
church held in memory of our Saviour’s res- 
urrection. The Greeks and Juatins eall it 
“nascha,” (passover,) to which Jewish 
feast our Easter answers. This feast has 
been annually celebrated since the time of 
the apostles, and is one of the most impor- 
tant festivals in the Christian calendar, be- 
ing that which regulates and determines the 
times of all the other movable feasts, Ene, 
Lond. 


EASTER-OFFERINGS, or EASTER- 
DUES. In English law. Small sums of 
money paid to the parochial clergy by the 
parishioners at Easter as a compensation for 
persenal tithes, or the tithe for personal la- 
ber; recoverable under 7 & 8 Wm, LIT, c. 6, 
before justices of the peace, 


EASTER TERM. In English law. 
One of the four terms of the courls. It is 
now a fixed term, beginning on the 15th of 
April and ending on the Sth of May in every 
year. though sometimes prolonged so late ag 
the 13th of May, under St. 11 Geo. IV. and 
| 1 Wm. TV. ¢. 70. From November 2, 1875, 
the division of the legal year into terms is 
abolished so far as concerns the adwinistra- 
tion of justice. 3 Steph. Comm, 452-486; 
| Mozley & Whitley. 


EASTERLING. A coin.strnck by Rich- 
ard IL. which is supposed to have given rise 
to the name of “sterling,” as applied to En- 
giish money. 


EASTERLY. This word, when used 
alone, will be construed to mean “due east.” 
But that is a rule of necessity growing out of 
the indetfiniteness of the term, and has no ap- 
plication where other words are used for the 
purpose of qualifying ils meaning. Where 
such is the case, instead of meaning “due 
east,” it moans precisely what the qualifying 
word makes if mean, 32 Cal. 227. 


EASTINUS. 
try. 


EAT [INDE SINE DIE. In criminal 
practice. Words used on the acquittal of a 


An easterly coast or coun- 


EATING-HOUSE 


J 
defendant, that he may go thence without a 
day, i. é., be dismissed without any further 
continuance or adjournment, 


EHATING-HOUSEH. <Any place where 
food or refreshments of any kind, not in- 
cluding spirits, wines, ale, beer, or other malt 
liquors, are provided for casual visitors, and 
sold for consumption therein. Act Cong. 
July 18, 1866, § 9, (14 St. at Large, 118.) 


EAVES. The edge of a roof, builf so as 
to project over the walls of a house, in order 
that the rain may drop therefrom to the 
ground instead of running down the wall. 


EAVESDROPPING. In English crim- 
inal law. The offense of listening under 
wills or windows, or the eaves of a house, to 
hearken after discourse, and thereupon to 
frame slanderous and mischievous tales. 4 
Bl. Comm. 168. It is a misdemeanor at com- 
mon law, indictable at sessions, and punish- 
able by fine and finding sureties for good be- 
havior. Id.; Steph. Crim. Law, 109. See 
3 Head. 300, 


EBB AND FLOW. An expression used 
formerly in this country to denote the limits 
of admiralty jurisdiction. See3 Mason, 127; 
2 Story, 176; 2 Gall. 598; 4 Wall. 562; 8 
Wall. 15. 


EBBA, Inold Englishlaw. Ebb. Hbba 
et fluctus; ebb and flow of tide; ebb and 
flood. Bract. fols. 255, 338. The time oc- 
cupied by one ebb and flood was anciently 
granted to persons essoined as being beyond 
sea, in addition to the period of forty days. 
See Fleta, lib. 6, c. 8, § 2. 


HBDOMADARIUS. In ecclesiastical 
law. An officer in cathedral churches who 
supervised the regular performance of divine 
service, and preseribed the particular duties 
of each person in the choir. 


EBEREMORTH, EBEREMORS, 
EBERRE-MURDER. See ABEREMURDER. 


Beee modo mirum, quod foomina fert 
breve regis, non nominando virum, 
conjunctum robore legis. Co. Litt. 1325. 
Behold, indeed, a wonder! thata woman hag 
the king’s writ without naming her husband, 
who by law is united to her, 


ECCHYMOSIS. In medical jurispru- 
dence. Blackness. It is an extravasation 
of blood by rupture of eapillary vessels, and 
hence it follows contusion; but it may ex- 
ist, as in cases of scurvy and other morbid 
conditions, without the latter. Ry. Med. Jur. 


172. 


om 
sess 


407 ECCLESIASTICAL AUTHORITIES 


ECCLESIA, Lat. An assembly. A 
Christian assembly; achureh, A place of re- 
ligious worship. Spelman. 


Ecclesia ecclesizs decimas solvere non 
debet. Cro. Eliz. 479. A church ought 
not to pay tithes to a church. 


Ecclesia est domus mansionalis Om- 
nipotentis Dei. 2 Inst, 164. The church 
is the mansion-house of the Omnipotent God. 


Eeclesia est infra setatem et in cus- 
todia domini regis, qui tenetur jura et 
heereditates ejusdem manu tenere et 
defendere. 11 Coke, 49. The church is 
under age, and in the custody of the king, 
who is bound to uphold and defend its rights 
and inheritances. 


Ecclesia fungitur vice minoris; meli- 
orem conditionem suam facere potost, 
deteriorem nequaquam. Co. Litt. 341. 
The church enjoys the privilege of a minor; 
it can Muke its own condition better, but not 
worse. j 


Ecclesia non moritur, 2Inst.3. The 


church does not dio. 


Ecelesi# magis favendum est quam 
persons. Godol, Ecce, Law, 172. The 
church is to be more favored than the parson. 


ECCLESIZZ SCULPTURA. Theimage 
or sculpture of a church in ancient times was 
often cut out or cast in plate or other metal, 
and preserved as a religious treasure or relic, 
and to perpetuate the memory of some fa- 
mous churches. Jacob. 


ECCLESIARCH. The ruler of a church. 


ECCLESIASTIC, n. <A clergyman; a 
priest; a man consecrated to the service of 
the church. 


ECCESIASTICAL. Something belong- 
ing to or set apart for the church, as dis- 
tinguished from “civil” or “secular,” with 
regard to the world. Wharton. 


ECCLESIASTICAL AUTHORITIES. 
In England, the clergy, under the sovereign, 
as temporal head of the church, set apart 
from the rest of the people or laity, in order 
to superintend the public worship of God and 
the other ceremonies of religion, and to ad- 
minister spiritual counsel and instruction, 
The several orders of the clergy are: (1) 
Archbishops and bishops; (2) deans and 
chapters; (3) archdeacons; (4) rural deans; 
(5) parsons (under whom are included ap- 
proprialors) and viears; (6) eurates. Church- 


ECCLESIASTICAL COMMISSIONERS 408 


wardens or sidesmen, and parish clerks and 
sextons, inasmuch as their duties are con- 
nected with the church, may be considered 
to be a species of ecclesiastical authorities. 
Wharton. 


ECCLESIASTICAL COMMISSION- 
ERS. In English law. As body corporate, 
erected by St. 6 & 7 Wm. IV. c. 77, em- 
powered to suggest measures conducive to 
the efficiency of the established church, to be 
ratified by orders in council. Wharton. Ses 
3 Steph. Comm. 156, 157. 


BCCLESIASTICAL CORPORA- 
TIONS. Such corporations as are composed 
of persons who take a lively interest in the 
advancement of religion, and who are asso- 
ciated and incorporated for that purpose. 
Ang. & A. Corp. § 36. 

Corporations whose members are spiritual 
persons are distinguished from lay corpora- 
tions. 1 Bl, Comm. 470. 


ECCLESIASTICAL COURTS. Asys- 
tem of courts in England, held by authority 


of the sovereign, and having jurisdiction over | 


matters pertaining to the religion and ritual 
of the established church, and the rights, 


duties, and discipline of ecclesiastical persons | 


as such. They are as follows: The arch- 
deacon'’s court, consistory court, court of 
arches, court of peculiars, prerogative court, 
court of delegates, court of convocation, 
court of audience, court of faculties, and 
court of commissioners of review. See those 
several titles; and see 3 Bl. Comm. 64-68. 


ECCLESIASTICAL DIVISION OF 
ENGLAND. This is a division into prov- 
inces, dioceses, archdeaconrics, rural dean- 
eries, and parishes. 


ECCLESIASTICAL LAW. The body 
of jurisprudence administered by the ecclesi- 
astical courts of England; derived, in large 
measure, from the canon and ecivillaw. As 
now restricted, it applies mainly to the af- 
fairs, and the doctrine, discipline, and wor- 
ship, of the established church. 


ECDICUS. The attorney, proctor, or ad- 
vocate of a corporation. Hpiscoporum 
ecdict; bishops’ proctors; church lawyers. 
1 Reeve, Eng. Law, 65. 


ECHANTILLON. InFrenchlaw. One 
of the two parts or pieces of a wooden tally. 
That in possession of the debtor is properly 
called the “tally,” the other “echantillon.” 
Poth. Obl. pt. 4, c. 1, art. 2, § 8. 


EDICTAL CITATION 


ECHEVIN. In French law. A munie- 
ipal officer corresponding with alderman or 


| burgess, and having in some instances a civil 


jorisdiction in certain causes of trifling im- 
portance. 


ECHOUEMENT. 
law. Stranding. 
125s: 13; no: 1: 


ECLAMPSIA PARTURIENTIUM. In 
medical jurisprudence, The name of a dis- 
ease accompanied by apoplectic convulsions, 


In French marine 
Emerig. Tr. des Ass. c. 


_ and which produces aberration of mind at 


childbirth. 


ECLECTIC PRACTICE. In medicine. 
That system followed by physicians who se- 
lect their modes of practice and medicines 
from various schools. Webster. 


“Without professing to understand much of med- 
ical phraseology, we suppose that the terms ‘allo- 
pathic practice’ and ‘legitimate business' mean 
the ordinary method commonly adopted by the 
great body of learned and eminent physicians, 
which is taught in their institutions, established 
by their highest authorities, and accepted by the 
larger and more respectable portion of the com- 
munity. By ‘eclectic practice,’ without imputing 
toit, as the counsel for the plaintiff seem inclined 
to, an odor of illegality, we presume is intended 
another and different system, unusual and eecen- 
tric, not countenanced by the classes before re- 
ferred to, but characterized by them as spurious 
and denounced as dangerous. It is sufficient to 
say that the two modes of treating human maladies 
are essentially distinct, and based upon different 
views of the nature and causes of diseases, their 
appropriate remedies, and the modes of applying 
them.” 34 Conn. 453. 


ECRIVAIN. In French marine law. 
The clerk of a ship. Emerig. Tr. des Ass. 


| ¢ 11, s. 3, n0. 2. 


ECUMENICAL. General; universal; as 
an ecumenical council. 


EDDERBRECHE. InSaxon law. The 
offense of hedge-breaking. Obsolete. 


EDESTIA. In old records. Buildings. 


EDICT. A positive law promulgated by 
the sovereign of a country, and having ref- 
erence either to the whole land or some of its 
divisions, but usually relating to affairs of 
state. It differs from a “public proclama- 
tion,” in that it enacts a new statute, and 
earries with it the authority of law. 


BEDICTAL CITATION. In Scotch law. 
A citation published at the market-cross of 
Edinburgh, and pier and shore of Leith, 
Used aguinst foreigners not within the king- 
dom, but having a landed estate there, and 
against natives out of the kingdom. Bell. 


EDICTS OF JUSTINIAN 


EDICTS OF JUSTINIAN. Thirteen 
constitutions or laws of this prince, found in 
most editions of the Corpus Juris Civilis, 
after the Novels. Being confined to matters 
of police in the provinces of the empire, they 
are of little use. 


EDICTUM. In the Roman Jaw. An 
edict; a mandate, or ordinance. An ordi- 
nanee, or law, enacted by the emperor with- 
out the senate; belonging to the class of eon- 
stitutiones principis. Inst. 1, 2, 6. An 
edict was a mere voluntary constilution of 
the emperor; differing from a reseript, in not 
being returned in the way of auswer; and 
from a decree, in not being given in judg- 
ment; and from both, in not being founded 
upon solicitation. Tayl. Civil Law, 233. 

A general order published by the prector, 
on entering upon his oflice, containing the 
system of rules by which he would administer 
justice during the year of his office. Dig. 1, 
2, 2, 10; Mackeld. Rom. Law, § 35. Tayl. 
Civil Law, 214. See Calvin. 


EDICTUM PERPETUUM,. In Roman 
law. The perpetual edict. A compilation 
or system of law in fifty books, digested by 
Julian, a lawyer of great eminence under the 
reign of Adrian, from the Pretor’s edicts and 
other parts of the Jas Honorarium. A)l the 
remains of it which have come down to us 
are the extracts of it in the Digests. Butl. 
Hor. Jur. 52. 


EDICTUM THEODORICI. Thisis the 
frst collection of law that was made after the 
downfall ef the Roman power in Italy. It 
was promulgated by Theodoric, king of the 
Ostrogoths, at Rome in A. D. 500. It con- 
sists of 154 chapters, in which we recognize 
parts taken from the Code and Novell of 
Theodosius, from the Codices Gregorianus 
and Hermogenianus, and the Sententie of 
Paulus. The edict was doubtless drawn up 
by Roman writers, but the original sources 
are more disfigured and altered than in any 
other compilation. This collection of law 
was intended to apply both to the Goths and 
the Romans, so far as its provisions went; 
but, when it made no alteration in the Gothic 


law, that law was atill to be in force. Sa- 
vignuy, Geschichte des R. R. 
EDITUS. Inold Englishlaw. Put forth 


or promulgated, when speaking of the pas- 
sageof a statute; and brought forth, or burn, 
when speaking of the birth of a child, 


EDUCATE. Includes proper moral, as 
well as intellectual and physical, instruction. 
Code Tenn. § 2521; 6 Heisk. 395. 


403 


EFFIGY 


EDUCATION. Within the meaning of 
a statute relative to the powers and duties of 
guardians, this term comprebends not mere- 
ly the instruclion received at school or col- 
lege, but the whole course of training, moral, 
intellectual, and physical. 6 Heisk. 400. 

Education may be particularly directed to 
either the mental, moral, or physical pow- 
ers and faculties, but in its broadest and best 
sense it relates to them all. 145 Mass. 146, 
13 N. E. Rep. 354. 


EFFECT. The result which an instru- 
ment between parties will produce in their 
relative rights, or which a statute will pro- 
duce upon the existing law, as discovered 
from the language used, the forms employed, 
or other materials for construing it. 

The phrases “take effect,” “be in force, ” “go in- 
to operation,” etc., have been used inierchange- 


ably aver since the organization of the state. 4 
Ind. 342. 


EFFECTS. Personal estate or property. 
This word has been held to be more compre- 
hensive than the word “goods,” as Includ- 
ing fixtures, which “goods” will not include. 
7 Taunt. 188; 4 J. B. Moore, 73; 4 Barn. & 
A. 206. 

In wills. The word “effects” is equiva- 
lent to “property,” or “worldly substance,” 
and, if used stmplictter, as ina gift of “all 
my effects,” will carry the whole personal 
estate. Ves. Jr. 507; Ward, Leg. 209. The 
addition of the words “real and personal” 
will extend it so as to embrace the whole of 
the testator’s real and personal estate. 
Cowp. 299; 3 Brown, Parl. Cas. 388. 

This is a word often found in wills, and, 
being equivalent to “property,” or “worldly 
substance,” its force depends greatly upon 
the association of the adjectives “real” and 
“personal.” “Real and personal effects” 
would embrace the whole estate; but the 
word “effects” alone must be confined to per- 
sonal estate simply, unless an intention ap- 
pears to the contrary. Schouler, Wills, 
§ 509. See 1 Cowp. 304. 


Eiffectus sequitur cansam. Wing. 226. 
The effect follows the cause. 


EFFENDI. In Turkish language. Mas- 
ter; a title of respect. 


EFFIGY. The corporeal representation 
of a person. 

To make the effigy of a person with an in- 
tent to make him the object of ridicule is a 
libel. 2 Chit. Crim. Law, 866. 


M 


EFFLUX 410 


BFFLUX. The ranning of a prescribed 
period of time to itsend; expiration hy lapse 
oftime. Particularly applied to the termi- 
nation of a lease by the expiration of the 
term for which it was made. 


EFFLUXION OF TIME. When this 
phrase is used in leases,-conveyances, and 
other like deeds, or in ngreeinents expressed 
in simple writing, it indicates the conclusion 
or expiration of an agreed term of years 
specified in the deed or writing, such conclu- 


EITHER 


Hi incumbit probatio, qui dicit, nen 
qui negat; cum per rerum naturam 
factum negantis probatio nulla sit. The 
proof lics upon him who affirms, not upon 
him who denies; since, by the nature of 
things, he who denies a fact cannot produce 
any proof. 


Hi nihil turpe, cui nihil satis. Tohim 
to whom nothing is enough, nothing is base. 
4 Insb. 83. 


EIA, or EY. Anisiand. Cowell. 


sion or expiration arising in the natural - 


course of avents, in contriudistinction to the 
determination of the term by the acts of the 
parties or by some unexpected or unusual in- 
cident or other sudden event. Brown, 


EFFORCIALITER. Forcibly; applied 
to military foree, 


BRFFRACTION. A breach made by the 
use of force. 


EKFFRACTOR. One who breaks 
through; one who commits a burglary. 


EFFUSIO SANGUINIS. In old En- 
giish law. The shedding of blood; the 
mulct, fine, zotte, or penalty imposed for the 
shedding of blood, which the kine granted 
to many lords of manors, Cowell; Tomlins. 
See BLoopwir. 


EFTERS. In Saxon law. 
or hedges. Blount. 


EGALITY. 
169e. 


EGO, I; myself. This term is used in 
forming genealogical tables, to represent the 
person who is the object of inquiry. 


Ways, walks, 


Owelty, (qg. 2) Co. Litt. 


HGO, TALIS. I, such a one. Words 
used in deseribing the forms of old deeds. 
Fleta, lib. 3, ¢. 14, § 5. 


EGREDIENS ET BXEUNS. In old 
pleading. Going forth and issuing out of 
(land.) Townsh, Pl. 17. 


EGYPTIANS, commonly called “Gyp- 
sies,” are counterfeit rogues, Welsh or En- 
glish, that disguise themselves in speech and 
apparel, and wander up and down the coun- 
try, pretending to have skill in telling fort- 
unes, and to deceive the common people, 
but live chiefly by filching and stealing, and, 
therefore, the statutes of 1 & 2 Mar. c. 4, and 
6 Eliz, ¢, 20, were made to punish such as 
felons if they departed not the realm or con- 
tinued toa month. Termes de la Ley, 


BIGNE. L. Fr. Eldest; eldest-born. Tha 
term is of common occurrence in the oid 
books, Thus, bastard eigne means an illegit- 
imate son whose parents afterwards marry 
and havea second son for law/ul issue, the lat- 
ter being called mulier putsne, (after-born.) 
Higne is probably a corrupt form of the 
French “ainé.” 2 Bl Comm. 248: Litt. 
§ 399. 


EEK. In Scotch law. An addition; as, 
eik to @ reversion, ei to a confirmation. 
| Bell, 


BIWNECTIA. Eldership. See Esnecy. 


BINETIUS. In English law. The old- 
esl; the first-born. Spelman. 


HIRE, or EYRE. In old English law. 

, A journey, route, or circuit. Justices iz eire 

were judges who were sent by commission, 

every seven years, into various counties to 

hold the assizes and hear pleas of the crown. 
3 Bl. Comm. 58. 


EIRENARCHA. A name formerly given 
to a justice of the peace. Inthe Digests, the 
word is written “itrenarcha.” 


Hisdem modis dissolvitur obligatio 
quse nascitur ex contractu, vel quasi, 
quibus contrahitur. An obligation which 
arises from contract, or guasé contract, is dis- 
solved in the samé ways in which it is con- 
tracted. Fleta, lib. 2, ce. 60, § 19. 


HISNE. The senior; the oldest son, 
| Spelled, also, “etgne,” “einsne,” “aisne,” 
“eign.” Termes de la Ley; Kelham. 


HISNETIA, EINETIA. The share of 
the oldest son. The portion acquired by 
primogeniture. Termes de la Ley; Co. Litt, 
1668; Cowell, 


HITHER. May be used in the sense of 
“each,” 59 Ill. 87. 

This word does not mean “all;” but does 
mean one or the other of two or more speci- 
fied things. (Tex.) 45. W. Rep. 538. 


EIBEL 


EJECT. To cast, or throw out; to oust, 
or dispossess; to put or turn out of posses- 
sion. 3 Bl. Comm. 198, 199, 200. 


EJECTA. 
ravished or defiowered, or cast forth from the 
virtuous. Blount. 


EJECTION. A turning out of posses- 
sion. 38 Bl. Comm. 199. 


EJECTIONE CUSTODIA. Inold En- 
glishlaw. Ejectment of ward. This phrase, 
which is the Latin equivalent for the French 
“ejectment de garde,” was the title of a writ 
which lay for a guardian when turned out of 
amy land of his ward during the minority of 
the latter. Lrown. 


EJECTIONE FIRMA. Ejection, or 
ejectment of farm. The name of a writ or 
action of trespass, which lay at common law 
where lands or tenements were let fora term 
of years, and aflerwards the lessor, rever- 
sioner, remainder-man, or any stranger eject- 
ed or ousted the lessee of his term, ferme, or 
farm, (ipsum a firma e@ecit.) In this case 
the latter might have his writ of ejection, by 
which he recovered at first damages for the 
trespass only, but it was afterwards madea 
remedy to recover back the term itself, or the 
remainder of it, with damages. Reg. Orig. 
2276; Fitzh, Nat. Brev. 220,°F, G; 3 BI. 
Comm. 199; Litt. § 322; Crabb, Eng. Law, 
290,448. It is the foundation of the modern 
action of ejectment. 


EJECTMENT. At common law, this 
was the name of a mixed action (springing 
from the earlier personal action of e¢/ectione 
jirme) which lay for the recovery of the pos- 
session of land, and for damages for the un- 
lawful detention of its possession, The ac- 
tion was highly fictitious, being in theory 
only for the recovery of a term for years, and 
brought by a purely ficlitions person, as les- 
see ina supposed lease fromm the real party in 
interest, ‘The latter’s title, however, must 
be estallished in order to warrant a recovery, 
and the establishment of such title, though 
nominally a mere incident, is in reality the 
object of the action. Hence this convenient 
form of suit came to be adopted as the usual 
method of trying titles to land. See 3 BI. 
Comm, 199. 

It was the only mixed action at common law, the 
whole method of proceeding in which was anoma- 
lous, und depended on fictions invented and upheld 
by the court for the convenience of justice, in or- 
der to escape from the inconveniences which were 


found to attend the ancient forms of real and mixed 
actions. 


411 


In old Englishlaw. A woman’ 


eS SS SS 
———EEEEEEE—E———— 


ELDER TITLE 


It is also a form of action by which posses- 
sory titles to corporeal hereditaments may be 
tried and possession obtained. 


EJECTUM. 
by the sea, 


That which is threwn up 
Also jetsam, wreck, ete. 


EJECTUS. 
whoremonger. 


In old English law. A 


Blount. 


EJERCITORIA. In Spanishlaw. The 
name of an action lying aguinst a ship’s 
owner, upon the contracts or obligations 
made by the master for repaira or supplies. 
Jt corresponds to the actio evercitoria of the 
Roman law. Mackeld. Rom. Law, § 512.. 


EJIDOS. In Spanish law. Commons; 
lands used in common by the inhabitants of 
a city, pueblo, or town, for pasture, wood, 
threshing-ground, ete. 15 Cal, 554. 


EJURATION. Renouncing or resigning 
one's place. 


Ejyus est interpretari cujus est con- 
dere. It is his to interpret whose it is to 
enact. Tayl. Civil Law, 96. 


Bjus est nolle, qui potest velle. He 
who can will, [exercise volition, ] has a right 
to refuse to will, [to withhold consent.} Dig. 
50, 7, 3. 


Ejus est periculum eujus est domin- 
ium aut commodum. He who has the 
dominion or advantage has the risk. 


Ejus nulla culpa est, eui parere ne- 
cesse sit. No guilt attaches to him who is 
compelled to obey. Dig. 50, 17, 169, pr. 
Obedience to existing laws is a sufficient ex- 
tenuation of guilt before a civil tribunal. 
Broom, Max. 12, note, 


HIUSDEM GHNERIS. 
kind, class, or nature, 


Of the same 


ELABORARE. In old European law. 
To gain, acquire, or purchase, as by labor 
and industry. 


ELABORATUS, Property which is the 
acquisition of labor. Spelman. 


ELDER BRETHREN. A distinguished 
body of men, elected as musters of Trinity 
Hiouse, an institution incorporated in the 
reign of Henry VILI., charged with numer- 
ous iinportant duties relating to the marine, 
such as the superintendence of light-houses. 
Mozley & Whitley; 2 Steph. Comm. 502. 


ELDER TITLE. A title of earlier date, 
but coming simultaneously into operation 


cio 


=a 


ELDEST 


with a title of younger origin, is called the 
“elder title,” and prevails. 


ELDEST. He or she who has the great- 
est age. 

The “eldest son” is the first-born son. If 
there is only one son, he may still be de- 
scribed as the “eldest.” L.R.7 H. L. 644. 


Electa una via, non datur recursus 
ad alteram. He who has chosen one way 
cannot have recourse to another. 10 Toull. 
no. 170. 


ELECTED. The word “elected,” in its 
ordinary signification, carries with it the idea 
of a vote, generally popular, sometimes more 
restricted, and cannot be held the synonym 
of any other mode of filling a position. 
Ney. 121. 


Hlectio est interna libera et sponta- 
nea separatio unius rei ab alia, sine 
compulsione, consistens in animo et 
voluntate. Dyer, 281. Election ig an in- 
ternal, free, and spontaneous separation of 
one thing from another, without compulsion, 
consisting in intention and will. 


Electio semel facta, et placitum tes- 
tatum non patitur regressum. Oo. Litt. 
146. Election once made, and plea wit- 
nessed, suffers not a recall. 


ELECTION. The act of choosing or se 
lecting one or more from a greater number of 
persons, things, courses, or rights. The 
choice of an alternative. 

The internal, free, and spontaneous sepa- 
ration of one thing from another, without 
compulsion, consisting in intention and will. 
Dyer, 281. 

The selection of one man from among sev- 
eral candidates to discharge certain duties in 
a state, corporation, or society. 

The choice which is open to a debtor who 
is bound in an alternative obligation lo select 
either one of the alternatives. 

In equity. The obligation imposed upon 
a party to choose between two inconsistent 
or alternative rights or claims, in cases where 


5° 


412 


there is clear intention of the person from | 


whom he derives one that he should not enjoy 
both. 2 Story, Eq. Jur. § 1075. 


The doctrine of election presupposes a plurality 
of gifts or rights, with an intention, express or im- 
plied, of the party who has a right to control one 
or both, that one should be a substitute for the 
other. 1 Swanst. 394, note b; 3 Wood. Lect. 491; 2 
Rop. Leg. 480-578. 


In practice. The liberty of choosing (or 
the act of choosing) one out of several means 


| bestowed or passing by election. 


ELECTORAL COLLEGE 


afforded by law for the redress of an injury, 
or one ont of several available forms of 
action. 

In criminal law. The choice, by the 
prosecution, upon which of several counts in 
an indictment (charging distinct offenses of 
the same degree, but not parts of a contin- 
uous series of acts) it will proceed. 


ELECTION AUDITORS. In English 
law. Officers annually appointed, to whom 
was committed the duty of taking and pub- 
lishing the account of all expenses incurred 
at parliamentary ¢lections. See 17 & 18 Vict. 
c. 102, 8§ 18, 26-28. But these sections 
have been repealed by the 26 Vict. ¢. 29, which 
throws the duty of preparing the accounts on 
the declared agent of the candidate, and the 
duty of publishing an abstract of it on the 
returning officer. Wharton. 


ELECTION DISTRICT. A subdivision 
of territory, whether of state, county, or city, 
the boundaries of which are fixed by law, for 
convenience in local or general elections. 
41 Pa. St. 403. 


ELECTION JUDGES. InEnglishtaw. 
Judges of the high court selected in pur- 
suance of the 31 & 82 Vict. c. 125, § 11, and 
Jud. Act 1873, § 38, for the trial of election 
petitions. 


ELECTION PETITIONS. Petitions 
for inquiry tnto the validity of elections of 
menibers of parliament, when it is alleged 
that the return of a member is invalid for 
bribery or any otherreason. These petitions 
are heard by a judge of one of the common- 
law divisions of the high court. 


Electiones fiant rite et libere sine inter- 
ruptione aliqua. Elections should be made 
in due form, and freely, without any inter- 
ruption. 2 Inst. 169. 


ELECTIVE. Dependent upon choice; 
Also pet- , 
taining or relating to elections; conferring 


the right or power to vote at elections. 


ELECTOR. He that has a vote in the 
choice of any officer; a constituent; also the 
title of certain German princes who formerly 
had a voice in the election of the German 
emperors. 


ELECTORAL. Pertaining to electors or 
elections; composed or consisting of electors. 


ELECTORAL COLLEGE. The body of 
princes formerly entitled to elect the emperor 
ofGermany. Also a name sometimes given, 


ELECTORS OF PRESIDENT 


415 


ELISORS 


in the United States, to the body of electors | for the public advantage, and subject to govern- 


chosen by the people to elect the president 
and vice-president. Webster. 


ELECTORS OF PRESIDENT. Per- 
sons chosen by the people at a so-called “ presi- 
dential election,” to elect a president and 
vice-president of the United States. 


ELEBMOSYNA REGIS, and HLEE- 
MOSYNA ARATRI, or CARUCARUM. 
A penny which King Ethelred ordered to be 
paid for every plow in England towards the 
support of the poor. Leg. Ethel. ec. 1. 


ELEEMOSYN AL Possessions belong- 
ing to tlio chureh. Blount, 


ELEEMOSYNARIA. The place in a 
religious house where the common alims were 
deposited, and thence by the almoner dis- 
tributed to the poor. 


In old Fnglish law. The cwmerte, aum- 
bry, or ambry; words still usel in eommon 
speech in the north of England, to denote 
4 pantry or cupboard. Cowell. 

The office of almoner. Cowell. 


ELEEMOSYNARIUS. In old English 
law. An almoner, or chief officer, who re- 
ceived the eleomusynary rents and gifts, and 
in due method distributed them to pious and 
charitable uses. Cowell; Wharton, 

The name of an officer (lord almoner) of 
the English kings, in former limes, who dis- 
tributed the royal alms or bounty. Fleta, 
lib. 2, & 23. 


ELHEMOSYNARY. Relating to the 
distribution of alins, bounty, or charity; 
charitable. 


ELEEMOSYNARY CORPORA- 
TIONS. Such as are constituted for the 
perpetual distribution of the free alms and 
bounty of ithe founder, in such manner as he 


hospitals for the relief of poor and impo- 
tent persons, and colleges for the promotion 
of learning and piety, and the support of 
persons engaged in literary pursuits, These 
corporations are lay, and not ecclesiastical, 
even though composed of ecclesiastical per- 
sons, and although they in some things par- 
tuke of the nature, privileges, and restric- 
tions of ecclesiastical bodies. 1 Bl. Comm. 
471. 

Eleemosynary corporations are for the manage- 
ment of private property according to the will of 
the donors. They ure private lay corporations, 
such as colleges, hespitals, ete. They differ from 
civil corporations in that the former are the mere 
creatures of public institution, created exclusively 


| aet of God.” 
has direeted; and in this class are ranked | 


mental control and visitation; whereas a private 
corporation, especially one organized for charita- 
ble purposes, is the creature of private benefac- 
tion, endowed and founded by private individuals, 
and subject to their control, laws, and visitation, 
and not tothose of the government. 4 Wheat. 518, 
660. 

ELEGANTER. In the civil law. <Ac- 
curately; with diserimination., 3 Story, 611, 
636. 


ELEGIT. (Lat. Wehaschosen.) This 
is the name, in English practice, of a writ 
of execution first given by the statute of 
Westm. 2 (13 Edw. I. c. 18) either upon a 
judgment for a debt or damages or upon the 
forfeiture of a recognizance taken in the 
king’s court. It is so called because it is in 
the choice or election of the plaintiff whether 
he will sue out this writ ora fi. fa. By it 
the defendant’s goods and chattels are ap- 
praised, and all of them (except oxen and 
beasts of the plow) are delivered to the 
plaintiff, at such reasonable appraisement 
and price, in part satisfaction of his debt. 
If the goods are not suflicient, then the moie- 
ty of his freehold lands, which he had at the 
time of the judgment given, are also to be 
delivered to the plaintitf, to hold till out of 
the rents and profits thereof the debt be lev- 
ied, or till the defendant's interest be expired. 
During this period the plaintiff is called 
“tenant by elegit,” and his estate, an “es. 
tate by elegit.” This writ, or its analogue, 
is in use in some of the United States, as Vir- 
ginia and Kentucky. See 3 Bl. Comm. 418; 
4 Kent, Comm. 431, 436, and notes; 10 Grat. 
580. 


ELEMENTS. The forces of nature. 
The elements are the means through which 
God acts, and “damages by the elements” 
means the same thing as “damages by the 
38 Cal. 416. 


ELIGIBLE. As applied to a candidate 
for an elective oifice, this term means capa- 
ble of being chosen; the subject of selection 
or choice; and also implies competency to hold 
the oilice if chosen. 15 Ind. 331; 15 Cal. 
121; 14 Wis. 497. 


ELIMINATION. In old English law. 
The act of banishing or turning out of doors; 
rejection. 


ELINGUATION. The punishment of 
cutting out the tongue. 


ELISORS. In practice. Electors or 
choosers. Persons appointed by the court to 


execute writs of venive, in cases where both 


H 


Ni 


ELISORS 


the sheriff and coroner are disqualified from 
acting, and whose duty is to choose—that is, 
name and return—the jury. 3 Bl. Comm, 
305; Co. Lith. 158; 8 Steph. Comin. 597, note. 

Persons appuinted to execute any writ, in 
defanlt of the sheriff and coroner, are also 
called “elisors.” 


ELL. A measure of length, answering 
to the modern yard. 1 Bl. Comin. 275. 


ELOGIUM. 
or testament, 


HLOIGNE. In practice. (Fr. Cleigner, 
to remove to a distance; to remove afar off.) 
A return to a writ of replevin, when the 
chattels have been removed out of the way 
of the sheriff. 


In the civil law. A will 


ELOIGNMENT. The getting a thing 
or person out of the way; or removing it to 
a distance, so as to be out of reach. 


ELONGATA. In practice. Eloigned; 
earried away to a distance. The old torm 
of the return made by a sheriff to a writ of 
replevin, stating that the goods or beasts 
had been eloigned ; that is, carried to a dis- 
tance, to places to him unknown. 3 BI. 
Comm. 148; 3 Steph. Comin. 522; Fitzh. Nat. 
Brev. 78, 74; Archb. N. Pract. 552. 


HLONGATUS. Eloigned. A _ return 
made by a sheriff to a writ de homine reple- 
gyéando, stating that the party to be replevied 
has been eloigned, or couveyed out of his 
jurisdiction. % Bl. Comm. 129. 


ELONGAVIT. In England, where ina 
proceeding by foreign attachment the plain- 
tiff has obtained Judgment of appraisement, 
but by reason of some act of the garnishee 
the goods cannot be appraised, (as where he 
hus removed them from the city, or has sold 
them, etc.,) the serjeant-al-mace returns that 
the garnishee has eloigned them, 7. e., re- 
moved them out of the jurisdiction, and on 
this return (called an “elongavit”) judgment 
is given for the plaintiff that an inquiry be 
made of the goods eloigned. This inquiry is 
set duwn for trial, and the assessment is 
roade by a jury after the manner of ordinary 
issues. Sweet. 


ELOPEMENT. The act ofa wife who 
voluntarily deserts her husband to cohabit 
with another man. 2 Bl. Comm. 130. To 
constitute an elopement, the wife must not 
only leave the husband, but go beyond his 
actual control; for if she abandons the hus- 
bund, and gues and lives in adultery in a 


414 


| any other place. 


| tides. 


EMBARGO 


house belonging to him, it is said not to be 
an elopement. 3N. H. 42. 


“ELSEWHERE.” In another place; in 
See 1 Vern. 4, and note. 

In shipping articles, this term, following 
the designation of the port of destination, 
must be construed either as void for uncer- 
tainty or as subordinate to the principal voy- 
age stated in \he preceding words. 2 Gall. 
477. 

EHLUVIONGS. In old pleading. Spring 
Townsh. Pl. 197. 


EMANCIPATION. The act by which 
one who was unfree, or under the power and 
control of another, is set at liberty and made 
his own master. 

In Roman law. The enfranchisement 
of 3 son by his father, whicl was anciently 
done by the formality of an imaginary sme, 
This was abolished by Justinian, who sub- 
stituted the simpler proceeding of a manu- 
mission before a magistrate. Inst. 1, 12, 6. 

In Louisiana. The emancipation of mi- 
nors is especially recognized and regulated by 
law. 

In England. The term “emancipation” 
has been borrowed from the Roman law, and 
is constantly used in the law of parochial 
settlements. 7 Adol. & E. (N.S.) 574, note. 


EMANCIPATION PROCLAMA- 
TION. An executive proclamation, declar- 
ing that all persons held in slavery in certain 
designated states and districts were and 
should remain free. It was issued January 
1, 1865, by Abraham Lincoln, as president 
of the United States and commander in chief, 


EMBARGO. A proclamation or order of 
state, usually issued in time of war or threat- 
ened hostilities, prohibiting the departure 
of ships or goods from some or all the ports 
of such state until further order. 2 Wheat. 
148. 

Embargo is the hindering or detention by any 
government of ships of commerce in its ports. If 
the embargo is luid upon ships belonging to citi- 
zens of the state imposing it, itis called a “civil 
embargo;” if, as more commonly happeus, it is 
laid upon ships belonging to the enemy, it is culled 
a “hostile embargo.” The effect of this laiter em- 
bargo is that the vessels detained are restured to 
the rightful owners if no war follows, but are for- 
feited to tha embargoing government if war does 
follow, the declaration of war being held to relate 
back to the original seizureand detention. Brown. 


The temporary or permanent sequestration 
of the property of individuals for the purposes 
of agovernment, ¢é. g., to obtain vessels for 
the transport of troops, the owners being re- 


EMBASSADOR 415 


imbursed for this forced service. Man. Int. 


Law, 143. 
EMBASSADOR. See AMBASSADOR, 


EMBASSAGE, or EMBASSY. The 
message or commission given by a sovereign 
or state to a minister,called an “ambassador,” 
empowered to treat or communicate with 
another sovereign orstate; also the establish- 
ment of an ambassador. 


EMBER DAYS. In ecclesiastical law, 
Those days which the ancient fathers. called 
“quatuor tempore jejunit” are of great an- 
tiquity in the church. They are observed on 
Wednesday, Friday, and Saturday next after 
Quadragesima Sunday, or the first Sunday in 
Leni, after Whitsuntide, Holyrood Day, in 
September, and St. Lucy’s Day, about the 
middle of December. Brit. c. 58. Ouralma- 
nacs call the weeks in which they fail the 
“Ember Weeks,” and they are now chiefly 
noticed on account of the ordination of priests 
and deacons; because the canon appvints the 
Sundays next after the Ember weeks for the 
solemu times of ordination, though the bish- 
ops, if they please, may ordain on any Sun- 
day or holiday. Enc, Lond. 


EMBEZZLEMENT. Thefraudulent ap- 
propriation to his own use or benelit of prop- 
erty or money intrusted to hima by another, 
by aelerk, agent, trustee, public officer, or 
other person acting in a fiduciary character, 
See 4 Bl, Comm, 280, 251; 38 Kent, Comm. 
194; 4Steph. Comm. 163, 169, 219; 40 N. Y. 
Super. Ct. 41. 

Embezzlement is the fraudulent appropri- 
ation of properiy by a person to whom it has 
been intrusted. Pen, Code Cal, § 503; Pen. 
Code Dak. § 596, 

Embezzlement is a species of larceny, and 
the term is applicable to cases of furtive 
and frauduJent appropriation by clerks, 
gervanis, or carriers of property coming into 
their possession by virtue of their employ- 
ment. It is distinguished from “larceny,” 
properly so called, as being committed in re- 
spect of property which is not at the time in 
the actual or legal possession of the owner. 
41 How. Pr. 294; 4 Steph. Comm. 168. 


Embezziement is not an offense at common law, 
but was created by statute. “imbezzle” includes 
{nits meaning appropriation ic one’s own use, and 
therefore the use of the single word “omhbezzie,” 
in the indictinent or information, contains within 
itseli the charge that the defendant appropriated 
the money or property to his own use. 8 La, 
Aun. 1153. 


EMBLEMENTS. The vegetable chattels 
telied “emblements” are the corn and other 


EMENDATIO 


growth of the earth which are produced an- 
nually, not spontaneously, but by labor and 
industry, and thence are called “fruetus in- 
dustriates.” 64 Pa. St. 137. 

The growing crops of those vegetable produc 
tions of the soi] whieh ars annually produced by 
the labor of the cultivator. They are deemed per- 
sonal property, and pass as such to the executor or 
administrator of the occupier, whether he were the 
owner in fee, or for life, or for years, if he die be 
fore he has actually cut, reaped, or gathered the 
same; and this, although, being aflixed to the soil, 
they mizht for some purposes be considered, while 
growing, as part of the realty. Wharton. 

The term also denotes tiie right of a ten- 
ant to take and carry away, after his tenancy 
has ended, such annual products of the land 
as have resulted from his own care and labor. 

Emblements are the away-going crop; in other 
words, the crop which is upon the ground and un- 
reaped when the tenant goes away, bis icase bhay- 
ing determined; and the right to emblements is 
the right in the tenant to take away the away-yo- 
ing crop, and for that purpose to come upon the 
land, and do all other necessary things thereon. 
Brown. 


EMBLERS DE GENTZ. L. Fr A 
stealing fromthe people. The phrase cecurs in 
the old rolls of parliament: “ Whereas divers 
muriers, emlbters de gentz, and robueries are 
committed,” ete. 


EMBRACEHOR. A person guilty of the 
offense of embracery, (g. v.) See Co. Litt. 
369. 


EMBRACERY. Incriminal law. This 
oifense consists in the attempt to influence a 
jury corruptly to one side or the other, by 
promises, persuasions, entreaties, entertain- 
ments, douceurs, and the like, The person 
guilty of it iscalledan “embraceor.” Brown. 


EBMENDA. Amends; something given 
in reparation for a trespass; or, in old Saxon 
times, in compensation for an injury or crime. 
Spelman. 


EMENDALS. An old word still made 
use of in the accounts of the society of the 
Inner Tempis, where so much in emendais 
ab the foot of an account on the balance 
thereof signifies s0 much money in the bank 
or Stock of the houses, for reparation of loss- 
e3, or other emergent occasions. Spelman. 


EMENDARE. InSaxonlaw. To make 
amends or satisfaction for any erime or tres- 
pass commitied; to pay a fine; to be fined, 
Spelman. AHmendare se, to redecm, or ran- 
sum one’s life, by payment of a weregild. 


EMENDATTO. In old English law. 
Amendment, or correction. The power of 


H 


EMENDATIO 


amending and correcting abuses, according 
to certain rales and measures. Cowell. 

In Saxon law. A pecuniary satisfaction 
for an injury; the same as emenda, (g. v-) 
Spelman. 


EMENDATIO PANIS ET CEREVI- 
SL. In old English law. ‘The power of 
Bupervising and correcting the weights and 
measures of bread and ale, (assising bread 
and beer.) Cowell, 


EMERGE. To arise; to come to light. 
“Unless a matter happen to emerge after is- 
sue joined.” Hale, Anal. § 1. 


EMERGENT YEAR. The epoch or 
date whence any people begin to compute 
their time. 


EMIGRANT. One who quits his coun- 
try for any lawful reason, with a design to 
settle elsowhere, and who takes his family 
and property, if he has any, with him. Vat- 
tel, b. 1, c. 19, § 224. 


EMIGRATION. The act of changing 
one’s domicile from one country or state to 
another, 

It is to be distinguished from “expatria- 
tion.” The latter means the abandonment 
of one’a country and renunciation of one’s 
citizensiip in it, while emigration denotes 
merely the removal of person and property to 
a foreign state. The former is usually the 
consequence of the latter. Emigration is 
also used of the remvuval from one section to 
another of the same country. 


EMINENCE. An honorary title given 
to cardinals. 


tificate of Urban VIII. 


EMINENT DOMAIN. Eminent do- 
main is the right of the people or govern- 
ment to take private property for public use. 
Code Civil Proe. Cal. § 1237. 

The right of eminent domain is the right 
of the state, through its regular organization, 
to reassert, either temporarily or permanent- 
ly, if3 dominion over any portion of the soil 
of the state on account of public exigency 
and for the public goed. Thus, in time of 
war or insurrection, the proper authorities 
may possess and hold any part of the terri- 
tory of the state for the common safety; and 
in time of peace the legislature may author- 
ize the appropriation of the same to public 
purposes, Such as the opening of roads, con- 
struction of defenses, or providing channels 
for trade or travel. Code Ga. 1882, § 2222. 


416 


EMIT 


Eminent domain {s the right which a government 
retains over the estates of individuals to resume 
them for public use. Wharion. 

The right of society, or of the sovereign, to die 
posé, in case of necessity, and for the public safe 
ty, of all the wealth contained in the state, is called 
“eminent domain.” 2 Paine, 658. 

Eminent domain is the highast and most exact 
idea of property remaining in the government, or 
in the aggregate body of the people in their sover- 
eign capacity. it gives a right to resume the pos- 
session of the property in the manner directed by 
the constitution and the laws of the state, when- 
aver the public interest requires it. 3 Paige, 45,78. 

“The exaction of money from individuals 
under the right of taxation, and the appro- 
priation of private property for public use by 
virius of Lhe power of eminent domain, must 
not be confused. In paying taxes the citizen 
contributes his just and ascertained share to 
the expenses of the government under which 
he lives. But when lis property is taken 
under the power of eminent domain, he is 
compelled to surrender to the publie some- 
thing above and beyond his due proportion 
for the public benefit. The matter is spe- 
cial. It is in the nature of a compulsory sale 
to the slate.” Black, Tax-Titles, § 3. 

The term “eminent domain” is sometimes 
(but inaccurately) applied to the iand, build- 
ings, ef¢c., owned directly by the government, 
and which have not yet passed into any pri- 
yate ownership. This species of property is 
much better designated as the “public do- 
main,” or “national domain.” 


EMISSARY, A person sent upon a 
mission as the agent of another; also a secret 


‘agent sent to ascertain the sentiments and 


designs of others, and to propagate opinions 


They were called “illustris- | favorable to his employer. 


sime” and “reverendissimi” until the pon- | 


EMISSION. In medical jurisprudence, 


| The ejection or throwing out of any secretion 


or other maiter from the vody; the expulsion 
of urine, semen, ete. 


EMIT. In American law. To put 
forth or send out; fe issue. “No state shalt 
emit bills of credit.” Const. U. 8. art. 1, 
§ 10. 

To issne; to give forth with authority; te 
put into circulation. See Britt or Crepir. 


The word “emit” is never employed in describ- 
ing those contracts by which a state binds itself 
to pay money at a future day for services actually 
received, or for money borrowed for present usa. 
Nor are instruments executed for such purposes, 
in common language, deuominated “bills of cred- 
it.” “To emit billsof credit” conveys to the mind 
the idea of issuing paper intended to circulate 
through the community, forits ordinary purposes, 
a8 money, which paper is redeemable at a future 
day, 4 Pet. 4:0; 11 Pet 257; 23 Ark. 369; 1 Scam. 


ST. 


EMIT 


In Scotch practice. To speak ont; to 
state in words. A prisoner is said to emit a 
deciaration. 2 Alis. Crim. Pr. 560. 


“EMMENAGOGUES. In medical juris- 
prudence. Tho name of 4 class of medicines 
supposed to have the property of promoting 
the menstrual discharge, and semetimes 
used for the purpose of procuring abortion. 


EMOLUMENT. ‘The profit arising from 
office or employment; that which is received 
as 8 compensation for services, or which is 
annexed to the possession of office as salary, 
fees, and perquisites; advantage; gain, pub- 
lic or private. Webster, Any perquisite, 
advantage, profit, or gain arising from the 
possession of an office. 105 Pa. St. 303. 


EMOTIONAL INSANITY. The spe- 
cies of mental aberration produced by a vio- 
lent excitement of the emotions or passions, 
though the reasoning faculties may remain 
unimpaired. 

EMPALEMENT. In ancient law. A 


mode of inflicting punishment, by thrusting 
a sharp pole up the fundament. Ene. Lond. 


EMPANWNEL. The writing or entering 
by the sheriff, on a parchment sehedule or 
roll of paper, the names of a jury summoned 
by him. Cowell. 


EMPARLANCE. See IMPARLANCE. 


EMPARNOURS. L. Fr. Undertakers 
of suits. Kelham, 
EMPEROR, The title of the sovereign 


ruler of an empire. This designation was 
ailoptel] by the rulers of the Roman world 
after the decay of the republic, and was as- 
sumed by those who claimed to be bheir suc- 
cessors in the “Holy Roman Empire,” as 
also by Napoleon. [t is now used as the 
title of the monarch of some single countries, 
as lately in Brazil, and some composite states, 
as Germany and Austria-Hungary, and by the 
queen of England as “Empress of India.” 

The title “emperor” seems to denote a 
power and dignity superior to that of a 
“king.” It appears to be the appropriate 
style of the executive head of a federal govern- 
ment, constructed on the monarchical prinei- 
ple, and comprising in its orvanization sev- 
eral distinct kingdoms or other guast sover- 
eign states; as is the case wilh the German 
empire at the present day. 


EMPHYTEHUSIS. In the Roman and 


civil law. A contract by which a landed es- ! 


tate was leased to a tenant, either in perpe- 
AM. DICT. LAW—27 


417 


EMPLOY 


tunity or for along term of years, upon the 
reservation of an annual rent or canon, and 
upon the condition that the lessee should im- 
prove the property, by building, cultivating, 
or otherwise, and with aright in the lessee 
to alien the estate at pleasure or pass 1b to 
his heirs by descent, and tree from any reyo- 
cation, re-entry, or claim of forfeiture on 
the part of the grantor, except for non-pay- 
mentof therent. Inst, 4, 25, 8;3 Bl. Comm. 
232; Maine, Anc. Law, 289. 

The right granted by such a contract, (jes 
emphyteutiaim, or emphyteuticarium.) The 
real right by which a person is entitled to 
eujoy another’s estate as if it were his own, 
and to dispose of its substance, as far as can 
be done without deteriorating it. Mackeld. 
Rom. Law, § 326, 


EMPHYTEUTA. Inthecivillaw. The 
person to whom an emphyteusis is granted; 
the lessee or tenant under a contract of em- 
phyteusis. 


EMPHYTEUTICUS. In the civil law. 
Founded on, growing out of, or having the 
character of, an emphytcusis; held under an 
emplhyteusts. 3 Bl. Comm. 232, 


EMPIRE. The dominion or jurisdiction 
of an emperor; the region over which the 
dominion of an emperor extends; imperial 
power; supreme dominion; sovereign com- 
mand. 


EMPIRIC. A practitioner in medicine 
or surgery, who proceeds on experience oniy, 
without science or leyal qualification; a 
quack, 


EMPLAZAMIENTO. In Spanish law. 
A summons or ¢itation, issued by authority 
of a judge, requiring the person to whom it 
is addressed to appear before the tribunal at 
a designated day and hour. 


EMPLEAD. To indict; to prefera charge 
against; to accuse. 


EMPLOI. In French law. Equitable 
conversion. When property covered by the 
régime dotal is sold, the proceeds of the sale 
must be reinvested for the benefit of tle wife. 
It is the duty of the purchaser to see that the 
price is so reinvested. Arg, Fr. Mere. Law, 
557. 


EMPLOY. To engage in one’s service; 


| to use as an agent or substitute in transact. 


ing business; to commission and intrast with 
the minagement of one’s ailairs; and, when 
used in respect to a servant or hired laborer, 
the term is equivalent to hiring, which im- 


EMPLOYED 


plies a request and a contract for a compen- 
sation, and has but this one meaning when 
used in the ordinary affairs and business of 
life. Ns 3599 be N.Y. 3712 


EMPLOYED. Thissignifies both the act 
of doing a thing and the being under con- 
tract or orders to doit. 14 Pet. 464, 475; 2 
Paine, 721, 745. : 


EMPLOYER. This word “is from the 
Freneh, but has become somewhat natural- 
ized in our language. Strictly and etymolo- 
gically, it means ‘i person employed,’ buf, 
1. practice in the French language, it ordi- 
harily is used to signify a person in some of- 
ficial employment, and as generally used with 
us, though perhaps not confined to any offi- 
cial employment, it is understood to mean 
some permanent employment or position,” 
2 Lans. 458. See, also, 75 N. Y. 41; 111 
Ind. 324, 12 N. E. Rep. 501. 

The word is more extensive than “clerk” 
or “officer.” It signifies any one in place, 
or having charge or using a function, as well 
as one in ollice, 3 Ct. Cl. 260. 


EMPLOYMENT. This word does net 
necessarily import an engagement or render- 
(ng services for another. A person muy as 
well be “employed” about his own business 
as in the transaction of the same for a prin- 
sipal. 43 Mo. 51; 56 Law J. Q. B. Div. 251. 


EMPORIUM. A place for wholesale 
trade in commodities carried by sea. The 
name is sometimes applied toa seaport town, 
but it properly signities only a particular 
place in such a town. Smith, Dict. Antiq. 


EMPRESTITO. In Spanish law. A 
loan. Something lent to the borrower at his 


request. Las Partidas, pt. 3, tit. 18, 1. 70. 


EMPTIO, EMPTION. The act of buy- 
ing; a purchase. 


EMPTIO BONORUM. Lat. In Roman 
law. <A species of forced assignment for the 
benefit of creditors; being a public sale of an 
insolvent debtor's estate, whereby the pur- 
chaser succeeded to all his property, rights, 
and claims, and became responsible for his 
debts and liabilities to the extent of a quota 
fixed before the transfer. See Mackeld. Kom. 
Law, § 521. 


EMPTIO ET VENDITIO. Lat. Pur- 
chase and sale; sometimes translated “emp- 
tion and vendition.” The name of the con- 
tract of sale in the Roman law. Inst. 3, 23; 
Bract. fol. 616. Sometimes made a compound 
word,. emptio-venditio. 


418 


EN MASSE 


A consensual contract to deliver a thing 
for a certain price. 

An agreement for the seller to part with a 
thing for money given to him by the buyer. 
3 Salk. 61. 


EMPTOR. A buyer or purchaser. 


Emptor emit quam minimo potest, 
venditor vendit quam maximo potest. 
The buyer purchases for the lowest price he 
can; the seller sells for the highest price he 
can. 2 Kent, Comm. 486. 


EMTIO. In the civil law. Purchase, 
This form of the word is used in the Digests 
and Code. Dig. 18, 1; Cod. 4, 49. 

EMTOR.,. In the civil law. <A buyer or 
purchaser; the buyer. Dig. 18, 1; Cod. 4, 49, 

EMTRIX. In the civi] law. <A female 
purchaser; the purchaser. Cod. 4, 54, 1. 


EN ARERE. L. Fr. Intime past. 2 
Inst, 506. 


EW AUTRE DROIT. 
another. 


In the right of 
Sea AurER DRoIt. 


EN BANKE. L. Fr. Inthe bench. 1 
Anders. 51. 


EN BREVET. In French law. An 
acte is said to be en brevet when a copy of it 
has not been recorded by the notary who 
drew it. 


EN DECLARATION DE SIMULA- 
TION. A fortn of action used in Louisiana, 
Its object is to have a contract declared judi- 
cially a simulation and a nullity, to remove 
a cloud from the title, and to bring back, for 
any legal purpose, the thing sold to the es- 
tate of the true owner. 20 La. Ann. 165. 


EN DEMEURE. In defanit. Used in 
Louisiana of a debtor who fails to pay on de- 
mand according to the terms of his obliga- 
tion. Seed Mart. (N. 8.) 574. 


En eschange il covient que les estates 
soient egales. Co. Litt. 50. In an ex- 
change it is desirable that the estates be 
equal. 

EN FAIT, Fr. In fact; in deed; actu- 
ally. 

EN GROS. Fr. 
wholesale. 


EN JUICIO. Span. Judicially; ina court 
of law; ina suit at law. White, New Recop. 
BZ ati Se. 15 


EN MASSE. Fr. In amass; ina lump; 
at wholesale. 


In gross. ‘Total; by 


EN MORT MEYNE 


EN MORT MEYNE. L. Fr. 
dead hand; in mortmain. Britt. c. 43. 


EN OWEL MAIN. L. Fr. In equal 
hand. The word “owel” occurs also in the 
phrase “ozelty of partition.” 


EN RECOUVREMENT. Fr. In 
French law. An expression employed to de- 
note that an indorsement made in favor of a 
person does not transfer to him the property 
in the bill of exchange, but merely constitutes 
an authority to such person to recover the 
amount of the bill. Arg. Fr. Merc. Law, 
558, 


EN ROUTE. Fr. On the way; in the 
course of a voyage or journey; in course of 
transportation, 


In a 


EN VENTRE SA MERE, 
its mother’s womb, <A term descriptive of 
anunborn child. Forsome purposes the law 
regards an infant e2 vente as in being. It 
may take a legacy; have a guardian; an es- 


In Ere = En 


tate may be limited to its use, etc. 1 Bl. 
Comm, 130. 
EN VIE. LL. Fr. In life; alive. Britt. 


@. 90: 


ENABLING POWER. When the:donor 
of a power, who is the owner of the estate, 
confers upon persons not seised of the fee the 
right of creating interests to take effect out 
of it, which conld not be done by the donee 
of the power unless by such authority, this 
is called an “enabling power.” 2 Bouy. Inst. 
no, 1928. 


ENABLING STATUTE. The act of 
32 Henry VILI.c. 28, by which tenants in tail, 
husbands seised in right of their wives, and 
otliers, were empowered to make leases for 
their lives or for twenty-one years, which they 
could not do before. 2 Bl. Comm. 319; Co. 
Litt, 44@. Tho phrase is also applied to any 
statute enabling persons or corporations to 
do what before they could not. 


ENACH. In Saxon law. The satisfac- 
tion for a crime; the recompense for a fault. 
Skene. 


ENACT. ‘To establish by law; to per- 
form or effeet; to decree. The usual intro- 
ductory formula in making laws is, “ Be it en- 
acted.” 


ENAJENACION. In Spanish and Mex- 
ican law. Alienation; transfer of property. 
The act by whieh the property ina thing, by 
luerative title, is transferred, as a donation; or 
hy overous title, as by sale or barter. In a more 


419 


i 


END 


extended sense, the term comprises also the 
contracts of emphyteusis, pledge, and mort- 
gaze, and even the creation of a servitude 
upon an estate, Escriche; 26 Cal. 88. 


ENBREVER. L. Fr. To write down 
in short; to abbreviate, or,in old language, 
imbreviate; to put into a schedule. Britt. 
c. 1. 


ENCAUSTUM. In the civil law. A 
kind of ink or writing fluid appropriate to the 
use of the emperor. Cod. 1, 23, 6. 


ENCEINTE. Pregnant. 
NANOY, 


ENCHESON. The occasion, cause, or 
reason for which anything is done. Termes 
de la Ley. 


ENCLOSE. Inthe Scotchlaw. To shut 
up a jury after the case has been submitted 
to them. 2 Alis. Crim. Pr. 634. See Lx- 
OLOSE. 


ENCLOSURE. See INcCLOsSURE. 


ENCOMIENDA. In Spanish law. A 
grant from the crown to a private person of 
a certain portion of territory in the Spanish 
colonies, together with the concession of a 
certain number of the native inhabitants, on 
the feudal principle of commendation. 2 
Wools. Pol. Science, 161, 162. Also a royal 
grant of privileges to the military orders of 
Spain. 

ENCOURAGE. In criminal law. To 
instigate; to incite to action; to give cour- 
age to; to inspirit; to embolden; to raise con- 
lidenee; to make confident. 7 Q. B. Div. 


See PREG- 


| 258; 4 Burr. 2073. See Arp. 


ENCROACH. To gain unlawfully upon 
the lands, property, or authority of another; 
as if one man presses upon the grounds of 
another too far, or if a tenant owe two shil- 
lings rent-service, and the lord exact three. 


| So, too, the Spencers were said to encroach 


the king’s authority. Blount; Plowd. 94a. 

In the law of easements. Where the 
owner of an easement alters the dominant 
tenement, so as to impose an additional re- 
striction or burden on the servient tenement, 
he is said to commit an encroachment. 
Sweet. 


ENCUMBER. See INcUMBER. 
ENCUMBRANCE,. See IncumBRANOR. 


END. Object; intent. Things are con- 
strued according to the end. Finch, Law, 
be iec.cdy nes 10. 


hi 


ENDENZIE 


ENDENGAIE, or ENDENIZEN. 
make free; to enfranchise, 


ENDORSE. See INDORSE. 


ENDOWED SCHOOLS. In England, 
cortain schools having endowments are dis- 
tinctively known as “endowed schools;” and 
a series of acts of parliament regulating them 
are known as the “endowed schools acts.” 
Mozley & Whitley. 


ENDOWMENT. 1, The assignment of 
dower; the setting off a woman's dower. 2 
Bl. Comm. 135. 

2. In appropriations of churches, (in En- 
glish law,) the setting off a sulicient main- 
tenance for the vicar in perpetuity. 1 BI. 
Comm. 387. 

3. The act of settling a fund, or permanent 
pecuniary provision, for the maintenance of 
a public institution, charity, college, ete. 

4. A fund settled upon a public institu- 
tion, etc., for its maintenance or use. 


The words “endowment” and “fund,” in a stat 
ute exempting frem taxation the real estate, the 
furniture and personal property, and the “endow- 
ment or fund” of religious and educational corpo- 
ratious, are cjusdem generis, and intended to com- 
prehend a class of property different from the other 
two, not real estateorchattels. The difference be- 
tween the words is that “fund” is a general term, in- 
cluding theendowment, while * endowment” means 
that particular fund, or part of the fund, of the in- 
stitution, bestowed for its more permanent uses, 
and usually kept sacred for the purposes intended. 
The word “endowment” does not, in such an enact- 
ment, include real estate. 82 N. J. Law, 360. 


ENDOWMENT POLICY Inlifeinsur- 
ance. A policy which is payable when the 
insured reaches a given age, or upon his de- 
cease, if Lhat occurs earlier. 


EN®MY, in public law, signifies either 
the nation which is af war with another, or 
a citizen or subject of such nation. 


ENFEOFF. To invest with an estate by 


feoffment. To make a gift of any corporeal 
hereditaments to another. See Frorruent. 


ENFEOFFMENT. The act of invest- 
ing with any dignity or possession; also the 
instrument or deed by which a person is in- 
vested with possessions. 


ENFRANCHISE. To make free; to in- 
corporate a man ina society or body politic. 


To 


ENFRANCHISEMENT. The act of 
making free; giving a franchise or freedom 
to; investiture with privileges or capacities of 
freedum, or municipal or political liberty. 
Admission to the freedom of a city; admis- 
sion to political rights, and particularly the 


420 


“ENGINE” 


right of suffrage. Anciently, the acquisition 
of freedom by a villein from his lord. 

The word is now used principally either of 
the manumission of slaves, (q. v.,) of giving 
to a borough or other constituency a right ta 
return a member or metnbers to parliament, 
or of the conversion of copyhold into free- 
hold. Mozley & Whitley. 


ENFRANCHISEMENT OF COPY- 
HOLDS. In English law. ‘The conversion 
of copyhold into freehold tenure, by a con- 
veyanee of the fee-simple of the property 
from the lord of the manor to the copy- 
holder, or by a release from the lord of all 
seigniorial rights, ete., which destroys the 
customary descent, and also all rights and 
privileges annexed to the copyholder’s es- 
tate. 1 Watk. Copyh. 862; 2 Steph. Comm. 
51, 


ENGAGEMENT. In French law. A 
contract. The obligation arising from a 
quasé contract. 

The terms “obligation” and “engagement” 
are said to be synonymous, (17 Toullier, no. 
1;) but the Code seems specially to apply the 
term “engagement” to those obligations 
which the law imposes on a man without the 
intervention of any contract, either on the 
part of the obligor or the obligee, (article 
1370.) Anengagement to do or omit to do 
something amounts toa promise. 21N. J. 
Law, 369. 

In English Practice. Theterm has been 
appropriated to denote a contract entered in- 
to by a married woman with the intention of 
binding or charging her separate estate, or, 
with stricter accuracy, a promise which in 
the case of a person swé juris would be a con- 
tract, but in the case of a married woman is 
not a contract, because she cannot bind her- 
self personally, even in equity. Her engaye- 
ments, therefore, merely operate as disposi- 
tions or appointments pro tanto of her sep- 
arate estate. Sweet. 


“ENGINE.” This is said to be a word 
of very general signification; and, when used 
in an act, its meaning must be sought out 
from the act itself, and the language which 
surrounds if, and also from other acta in 
pari materia, in which it occurs. Abbott, 
J.,6 Maule & $.192. In a large sense, it ap- 
plies to all utensils and tools which afford 
the means of carrying on a trade. Butina 
more limited sense it means a thing of con- 
siderable dimensions, of a fixed or permanent 
nature, analogous to au erection or building. 
Td. 182. 


ENGLESHIRE 


ENGLESHIRE. A law was made by 
Canute, for the preservation of his Danes, 
that, when a man was killed, the hundred or 
town should be liable to be amerced, unless 
it could be proved that the person killed was 
an Englishnnan. This proof was called “@n- 
gieshize.” 1 Hale, P. C. 447; 4 BIL. Comm. 
195; Spelman. 


ENGLETERRE. England. 


ENGLISH INFORMATION. In En- 
glish law. <A proceeding in the court of ex. 
Chequer in matters of revenue. 


“ENGLISH MARRIAGE.” This 
phrase may refer to the place wherethe mar- 
tiage is solemnized, or it may refer to the 
nationality und domicile of the parties be- 
tween whom it is solemnized, the place where 
the union go created is to beenjoyed. 6 Prob. 
Div. 51. 


421 


ENGRAVE does not include the process | 


of reproducing pietures by means of photog- 
raphy. 5 Blatchf. 325. 


ENGROSS. To copy the rude draft 
of an instrument ina fair, large hand. To 
write out, in a large, fair hand, on parch- 
ment. 

In old criminal law. ‘To buy up so 
much of a commodity on the market as to 
obtain a monopoly and sell again at a forced 
price. 


ENGROSSER. One who engrosses or 
Writes on parchment in a large, fair hand. 

One who purchases large quantities of any 
commodity in order to acquire a monopoly, 
and to sell them again at high prices. 


ENGROSSING. In English law. The 
getting into one’s possession, or buying up, 
large quantities of curn, or other dead vict- 
uals, with intent toseli them again. ‘The 
total engrossing of any other commodity, 
with intent to sell it at an unreasonable price. 
4 Bl. Comm. 158, 159. This was a misde- 
mInvanor, punishable by fine and imprison- 
ment. Steph. Crim. Law, 95. Now re- 
pealed by 7 & 8 Vict.c. 24. 4 Steph. Comm. 
291, note. 


ENHANCED. This word, taken in an 
unqualified sense, is synonymous with “in- 
ereased,” und comprehends any increase of 
Value, however caused or arising. 32 Fed. 
Rep. $12. 


ENITIA PARS. The share of the eldest. 
A term of the English law descriptive of the 
lot or share chosen by the eldest of copar- 


ENORMIA 


ceners when they make a voluntary par- 
tition. The first choice (primer election) be- 
longs to the eldest. Co. Litt. 166. 


Hnitia pars semper preferenda est 
propter privilegium statis. Co. Litt. 166. 
The part of the elder sister is always to be 
preferred on account of the privilege of age. 


ENJOIN. To require; command; pos- 
itively direct. To require a person, by writ 
of injunction from a court of equity, to per- 
form, or to abstain or desist from, some act. 


ENJOYMENT. The exercise of aright; 
the possession and fruition of a right, priv- 
ilege, or incorporeal hereditament. 


ENLARGE. To make larger; to increase; 
to extend a time limit; to grant further time, 
Also to set at liberty one who has been im- 
prisoned or in custody. 


ENLARGER L’ESTATE. A species of 
release which inures by way of enlarging an 
estate, and consists of a conveyance of the 
ulterior interest to the particular tenant; as 
if there be tenant for life or years, remainder 
to another in fee, and he in remainder re- 
leases all his right to the particular tenant 
and his heirs, this gives him the estate in fee. 
1 Steph. Comm. 518. 


ENLARGING. Extending, or making 
more comprehensive; as an enlarging statute, 
which is one extending the common law. 


ENLARGING STATUTE. A remedial 
statute which enlarges or extends the com- 
mon law. J Bl. Comm. 86, 87. 


ENLISTMENT. The act of one who vol- 
untarily enters the military or naval service 
of the government, contracting to serve ina 
subordinale capacity. 

The words “enlist” aud “enlistment, ” in law, as 
in common usage, may signify either the complete 
fact of entering into the military service, or the 
first step taken by the recruit towards that end. 
When vsed in the former sense, as in statutes con- 
ferring aright to compel the military service of 
enlisted men, the enlistment is not deemed com- 
pleted until the man has been mustered into the 
service. 8 Allen, 480. 

Enlistment does not include the entry of a person 
into the military service under a commission as an 
officer. 48 N. H. 250. 

Enlisted applies to a drafted man as well asa 
volunteer, whose name is duly entered on the mil- 
itary rolls. 107 Mass. 282. 


ENORMITIA. In old practice and plead- 
ing. Uniawful or wrongful acts; wrongs. Ht 
alia enormia, and other wrongs. This phrase 
constantly occurs in the old writs and decla- 
rations of trespass. 


iH 


ENORMOUS 


ENORMOUS. Aggravated. “So enor- 
mous atrespass.” Vaughan, 115. Written 
“enormious,” in some of the old books. 
Enormious is where a thing is made without 
a rule or against law. Brownl. pt. 2, p. 19. 


ENPLEET. Anciently used for implead. 
Cowell. -. 


ENQUETE, or ENQUEST. In canon 
law. An examination of witnesses, taken 
down in writing, by or before an authorized 
judge, for the purpose of gathering testimo- 
ny to be used on a trial. 


ENREGISTREMENT. In French law. 
Registration. A formality which consists in 
inscribing on a register, specially kept for the 
purpose by the government, asummary anal- 
ysis of ceriain deeds and documents. At 
the same time that such analysis is inscribed 
upon the register, the clerk places upon the 
deed a memorandum indicating the date up- 
on which it was registered, and af the side 
of such memorandum an impression is made 
withastamp. Arg. Fr. Mere. Law, 558. 


ENROLL. To register; to make a rec- 
ord; to enter on the rolls of a court; to tran- 
scribe. 


ENROLLMENT. InEnglishlaw. The 
registering or entering on the rolls of chan- 
cery, king’s bench, cowmon pleas, or excheq- 
uer, or by the clerk of the peace in the rec- 
ords of the quarter sessions, of any lawful 
act; as a recognizance, a deed of bargain and 
sale, and the like. Jacob. 


BNROLLMENT OF VESSELS. In 
the laws of the United States on the subject 
of merchant shipping, the recording and cer- 
tification of vessels employed in coastwise 
or inland navigation; as distinguished from 
the “registration” of yessels employed in 
foreign commerce. 3 Wall, 566. 


ENS LEGIS. L.Lat. A creatureof the 
law; an artificial being, as contrasted with 
a natural person. Applied to corporations, 
considered as deriving their existence entire- 
ly from the law. 


ENSCHEDULE. [To insert in a list, ac- 
count, or writing. 

ENSEHAL. To seal. Hnsealing is still 
used as a formal word in conveyancing. 


ENSERVER. L. Fr. 
to a service or servitude. 


ENTAIL, »v. To settle or limit the succes- 
sion to real property; to create an estate tail. 


To make subject 
Britt. c. 54. 


422 


ENTERING SHORT 


ENTAIL, n. A fee abridged or limited 
to the issue, or certain classes of issue, in- 
stead of descending to ail the heirs. 1 
Washb, Real Prop. 66; Cowell; 2 Bl. Comm. 
112, note. 

Entail, in legal treatises, is used to signify an 
estate tail, especially with reference to the re- 
straint which such an estate imposes upon its own- 
er, or, in other words, the points wherein such an 
estate differs from an estate in fee-simple. And 
this is often its popular sense; but sometimes it 
is, in popular language, used differently, so as to 
siguify a succession of life-estates, as when itis 
said that “an entail ends with A.,” meaning that 
A. is the first person who is entitled to bar or cut 
off the entail, being in law the first tenant in tail 
Mozley & Whitley. 

ENTAILED. Settled or limited to specl- 
fied heirs, or in tail. 


ENTAILED MONEY. Money directed 
to be invested in realty to be entailed. 3 & 
4 Wm. IV. c. 74, §§ 70, 71, 72. 


ENTENCION,. Inold Englishlaw. The 
plaintiff’s count or declaration. 


ENTENDMENT. The old form of t7- 
tendment, (q. v.,) derived directly from the 
French, and used to denote the true meaning 
or signification of a word or sentence; that 
is, the understanding or construction of law. 
Cowell. 


ENTER. In the law of real property. 
To go upon tand for the purpose of taking 
possession of it. In strict usage, the enter- 
ing is preliminary to the taking possession, 
but in common parlance the entry is now 
merged in the taking possession. 

In practice. To place anything before a 
court, or upon or among the records, in a 
formal and regular manner, and usually in 
writing; as to “enter an appearance,” to 
“enter a judgment.” In this sense the word 
is nearly equivalent to setting down formally 
in writing, in either a full or abridged form, 


ENTERCEUR. L. Fr. <A party chal- 
lenging (claiming) goods; he who has placed 
them in the hands of a third person. Kel- 
ham. 


ENTERING JUDGMENTS. The form- 
alentry of the judgment on the rolls of the 
court, which is necessary before bringing an 
appeal or an action on the judgment. 


ENTERING SHORT. When bilis not 
due are paid into a bank by a customer, it is 
the custom of some bankers not to carry the 
amount of the bills directly to his credit, but 
to “enter them short,” as it is called, 7@. ¢., to 
note down the receipt of the bills, their 


ENTERTAINMENT 4 


amounts, and the times when they become 
due in a previous column of the page, and 
the amounts when received are carried for- 
ward into the usual cash column. Some- 
times, instead of entering such bills short, 
bankers credit the customer directly with the 
amount of the bills as cash, charging interest 
on any advances they may make on their ac- 
count, and allow him at once to draw upon 
them tothatamount. Ifthe banker becomes 
bankrupt, the property in bills entered short 
does not pass to his assignees, but the cus- 
tomer is entitled to them if they remain in 
his hands, or to their proceeds, if received, 
subject to any lien the banker may have upon 
them. Wharton. 


ENTERTAINMENT. This word is 
synonymous with “board,” and includes the 
ordinary necessaries of life, 2 Miles, 523. 


ENTICEH. To solicit, persuade, or pro- 
cure. 12 Abb. Pr. (N.S.) 187. 


ENTIRE. Whole; without division, sep- 
aration, or diminution. 


ENTIRE CONTRACT. Where a con- 
tract consists of many parts, which may be 
considered as parts of one whole, the contract 
is entire. When the parls may be consid- 
ered as so many distinct contracis, entered 
into at one time, and expressed in the same 
instrument, but not thereby made one con- 
tract, the contract is a separable contract. 
But, if the consideration of the contract is 
single and entire, the contract must be held 
to be entire, although the subject of the con- 
trach may consist of several distinct and 
wholly independent items. 2 Pars. Cont. 
517. 


ENTIRE DAY. This phrase signifies an 
undivided day, not parts of two days. An 
entire day must have a legal, fixed, precise 
time to begin, and a fixed, precise time to 
end. A day, in contemplation of law, com- 
prises all the twenty-four hours, beginning 
and ending at twelve o’clock at night. 43 
Ala. 325. 

In a statute requiring the closing of all 
liquor saloons during “the entire day of any 
election,” etc., this phrase means the natural 
day of twenty-fuur hours, commencing and 
terminating at midnight. 7 Tex. App. 30; 
Id. 192. 


ENTIRE INTEREST. The whole in- 
terest or right, without diminution. Where 
a person in selling his tract of lund sells also 
his entire interest in all improvements upon 
public land adjacent thereto, this vests in the 


5 


_ 


— a 


3 ENTRY 
purchaser only a quitclaim of his interest in 
the improvements. 13 La. Ann. 410. 


ENTIRE TENANCY. A sole passes- 
sion by one person, culled “severalty,” which 
is contrary to several tenancy, where a joint 
or commen possession is in one or more. 


ENTIRE USE, BENEFIT, ETC. These 
words in the Aabendum of a trust-deed for the 
benefit of a married woman are equivalent to 
the words “sole use,” or “sole and sejarate 
use,” and consequently her husband takes 
nothing under such deed. 3 Ived. Eq. 414 


ENTIRETY. The whole, in contradis- 
tinction to a moiety or part only. When land 
is conveyed to husband and wife, they do not 
take by moieties, but both are seised of the en- 
tirety. 2 Kent, Comm.132; 4 Kent, Comm. 
362. VParceners, on the other hand, have not 
an entirety of interest, but each is properly en- 
titled to the whole of a distinct moiety. 2 
Bl. Comm. 188. 

The word is also used to designate that 
which the law considers as one whole, and not 
capable of being divided into parts. Thus,a 
judgment, it is held, is an entirety, and, if 
void as toone of the two defendants, cannot be 
valid as to the other. So, if a contract is an 
entirety, no part of the consideration is due 
until the whole has been performed. 


ENTITLE. In its usualsense, to entitle 
is togivea rightortitle. Therefore a person 
is said to be entitled to property when he has 
a right to it. 

In ecclesiastical law. To entitle is to 
givea title or ordination as a minister. 

ENTREBAT. L. Fr. 
interloper. Britt. ¢. 114. 


ENTREGA. Span. 
tidas, pt. 6, tit. 14, 1. 1. 


ENTREPOT. A warehouse ormagazine 
for the depusit of goods. In France, a build- 
ing or place where goods from abroud may be 
deposited, and from whence they may be with- 
drawn for exportation to another country, 
without paying a duty. Brande; Webster. 


ENTRY. 1. In real property law. 
Entry is the act of going peaceably upon a 
piece of land which is claimed a3 one’s own, 
but which is held by another person, with the 
intention and for the purpose of taking pus- 
session of the same. 

Entry isu remedy which the law affords to an 
injured party ousted of his lands by another per- 
son who has taken possession thereof without 
right. This remedy (which must in all cases be 
pursued peaceably) takes place in three only out 


An intruder or 


Delivery. Las Par- 


ENTRY 


of the five species of ouster, viz., abatement, in- 
trusion, and disseisin; for, as in these three cascs 
the original entry of the wrong-doer is unlawful, 
50 the wrong may be remedied by the mere entry 
of the former possessor. But itis otherwise upon 
a discontinuance or deforcement, for in these lat- 
ter two cases the former possessor cauuot rem- 
edy the wrong by entry, but must do so by action, 
inasmuch as the original entry being in these cases 
lawful, and therefore conferring an apparent 
right of possession, the law will not suffer such 
apparent right to be overthrown by the mere act 
or entry of the claimant. Brown. 

An entry at common law is nothing more than an 
assertion of title by going on the land; or, i? that 
was hazardous, by making continual claim, An- 
ciently, an actual entry was required to be made 
and alease exccuted on the land to sustain the ac- 
tion of ejectment; but now nothing of that kind 
is necessary. The entry and the lease, as well as 
the ouster, are fictions, and nothing is required 
but that the lessor should have the right to enter. 
A proceeding precisely analogous obtained in the 
civillaw. 1 Ala. 660. 

2. In criminallaw. Entry is the uvlaw- 
ful making one’s way into adwelling or other 
house, for the purpose of committing a crime 
therein. 

In cases of burglary, the least entry with the 
whole or any part of the body, hand, or foot, or 
with any instrument or weapon, introduced for 
the purpose of committing a felony, is sufficient to 
complete the offense. 3 Inst. 64. 

Without reference to burglary, a breaking 
into a house or going upon lands with vio- 
lence and circumstances of aggression is 
terined “forcible entry,” and was a breach of 
the peace at common law. “Forcible entry 
and detainer” ss made an offense by statute 
in many of the states. 


3. In practice. Entry denotes the form- 
al inscription upon the rolls or records of 
a court of a note or minute of any of the pro- 
ceedings in an action; and it is frequently 
applied to the Gling of a proceeding in writ- 
ing, such as a notice of appearance by a de- 
fendant, and, very generally, to the filing of 
the judgment roll asa record in the oflice of 
the court, 

4. In commercial law. Entry denotes 
the act of a merchant, trader, or other busi- 
ness man in recording in his account-books 
the facts and circumstances of a sale, loan, 
or olher transaction. Aliso the note or rec- 
ord so made. The bovks in which such 
memoranda are first (or originally) inseribed 
are culled “bouks of original entry,” and are 
prima facie evidence for certain purposes. 

5. In revenue law, The entry of im- 
ported goods at the custom house consists in 
submitting them to the inspection of the rey- 
enue otlicers, together with a statement or 
description of sush goods, and the original 


424 


=. — 
eee ae 


ENTRY ON THE ROLL 


invoices of the same, for the purpose of esti- 
mating the duties to be paid thereon. 

6. Under the provisions of the land laws 
of the United States, the term “entry” de- 
notes the filing at the land-office, or inserip- 
tion upon its records, of the documents re- 
quired to found aclaim for a homestead or 
pre-emption right, and as preliminary to the 
issuing of a patent for the land. 

7. In Scotch law. The term refers to 
the acknowledgment of the title of the hair, 
etc., to be admitted by the superior, 


ENTRY AD COMMUNEM LEGEM. 
Entry ab common law. The name of a writ 
of entry which lay for areversioner after the 
alienation and death of the particular tenant 
for life, against him who was in possession 
of the land. Brown. 


ENTRY AD TERMINUM QUI 
PRATERIIT. The writ of entry ad ter- 
minum qui preterit lies where a man leases 
land to another for a term of years, and the 
tenant holds over histerm. And if lands be 
leased to a man for the term of another's life, 
and he for whose life the lands ure leased 
dies, and the lessee helds over, then the les- 
sor shall have this writ. Termes dela Ley. 


ENTRY FOR MARRIAGE IN 


SPEECH. A writ of entry causa mairi- 


montt praloguuté lies where lands or tene- 
ments are givento a man upon condition that 
he shall take the donor to be his wife within 
a certain time, and he does not espouse her 
within the said term, or espouses another 
woman, or makes himself priest. Termes de 
la Ley. 


ENTRY IN CASU CONSIMILI. A 
writ of entry in casu consimili lies where a 
tenant for life or by the curtesy aliens in fee. 
Termes de la Ley. 


ENTRY IN THE CASE PROVIDED. 
4A writ of entry iz casu proviso lies if « ten- 
ant in dower alien in fee, or for life, or for 
another’s life, living the tenant in dower. 
Termes de la Ley. 


ENTRY OF CAUSE FOR TRIAL. 
In English practice. The proceeding by a 
plaintifé in an action who had given notice of 
trial, depositing with the proper officer of the 
court the nist prtus record, with the panel of 
jurors annexed, and thus bringing the issue 
before the court for trial. 


ENTRY ON THE ROLL. In former 
times, the parties to an action, personally or 


ENTRY, ETC. 


by their connsel, use to appearin open court 


and make their mutual statements vin? voce, 
instead of as at the present day delivering 
their mutual pleadings, until they arrived at 
the issue or precise point in dispute between 
them, During the progress of this oral state- 
ment, a minute of the various proceedings 
was made on parchment by an ofticer of the 
eourt appointed for that purpose. The parch- 
ment then became the record; in other words, 
the official history of fhe suit. Long after 
the practice of oral pleading had fallen into 
disuse, lt continued necessary to enter the 
proceedings in like manner upon the parch- 
ment roll, and this was called “entry on the 
roll,” or making up the “issue roll.” But 
bya rule of H. T. 4 Wm. LV., the practice 
of making up the issue roll was abolished; 
and it was only necessary to make up the is- 
gue in the form prescribed for the purpose by 
a rule of H. T. 1853, and to deliver the same 
to the court and to the opposite party. ‘The 
isstte Which was delivered to the court was 
called the “2tst prius record,” and that was 
reyarded a3 the official history of the suit, in 
like manner as the issue roll formerly was. 
Under the present practice, the issue roll or 
nisi prius record consists of the papers deliv- 
arel to the court, to facilitate the trial of the 
action, these papers consisting of the plead- 
ings simply, with the notice of trial. Brown. 


ENTRY WITHOUT ASSENT OF | 


THE CHAPTER. A wrib of entry sine 
assensw capitiult lies where an abbot, prior, 
or such as hath covent or common seal, alions 
lands or tenements of the right of his church, 
without the assent of the covent or chapter, 
and dies. ‘Termes de la Ley. 


ENTRY, WRIT OF. In old English 
practice. This was a writ made use of ina 
form of real action brought to recover the 
possession of lands from one who wrongfully 
withheld the same from the demandant. 


Its object was to regain the possession of lands 
of which the demandant, or his ancestors, had been 
unjustly deprived by the tenant of the frechold, or 
those under whom he claimed, and hence ii be- 
longed to the possessory division of real actions. 
It decided nothing with respect to the right of 
property, but only restored the demandant to that 
situation in which he was (or by lawought to have 
been) before the dispossession committed. 3 Bl. 
Comm. 180. 

It was usual to specify in such writs the degree 
or degrees within which the writ was brought, 
and it was sald to be “in the per” or “in the per 
and cui,” according as there had been one or twa 
descents or alienations from the original wrong- 
doer. If more than two such transfers had inter- 
vened, the writ was said to be “in the post.” See 
8 BL Comm. 181. 


425 


EPIDEMIC 


Enumeratio infirmat regulam in casi- 
bus non enumeratis. Enumeration disaf- 
firms therule in cases not enumerated. Bac. 
Aph. 17. 


Enumeratio unius est execlusio alte- 
rius. The specification of one thing is the 
exclusion of adifferent thing. A maxim more 
generally expressed in the form “expressio 
unius est exclusio alterius,” (q. 0.) 


ENUMERATORS. Persons appointed to 
collect census papers or schedules. 33 & 34 
Vict. c. 108, § 4. 


BNURE. ‘To operate or take effect. To 
serve to the use, benefit, or advantage of a 
person. A release to the tenant for life 
enures to himin reversion; that is, it has the 
same effect for him as for the tanant for life. 
Often written “inure.” 


ENVOY. In international law. <A pub- 
lic minister of the second ciass, ranking next 
after an ambassador. 

Envoys are either ordinary or extraordi- 


nary; by custom the latter is held in greater 
consideration. 


HO INSTANTE. At that instant; at 
the very or same instant; immediately. 1 
Bl. Comm. 136, 249; 2 Bl. Comm. 168; Co. 
Litt, 2982; 1 Coke, 138. 


HO INTUITU. With or in that view; 
with that intent or object. Hale, Anal. 
§ 2. 

EO LOCI. In the civil law. In that 


state or condition; in that place, (eo loco.) 
Calvin. 


EO NOMINEE. Under that name; by 
that appellation. Periude ae si co nomine 
tibi tradita fuissel, just as if it had been de- 
livered to you by that name. Inst. 2, l, 43. 
A common phrase in the books. 


EHodem ligamine quo ligatum est dis- 
solvitur. A bond is released by the same 
formalities with which it is contracted. Co. 
Litt. 2125; Broom, Max. 891. 


Fodem modo quo quid constituitur, 
dissolvitur. In the manner in which [by 
the saine means by which] a thing ig consti- 
tuted, is it dissolved. 6 Coke, 536. 


EORLE. In Saxon law. <An earl. 


BOTH. In Saxon law. <An oath. 


HPIDEMIC. This term, in its ordinary 
and popular meaning, applies to «ny disease 
which is widely spread or generally prevail- 


EPILEPSY 


ing at a given place and time, 
per. Ct, 234. 


EPILEPSY. In medical jurisprudence. 
A disease of the brain, which occurs in par- 
oxysms with uncerlain intervals between 
them, 


EPIMENIA. Expenses or gifts. Blount. 


EBPIPHANY. A Christian festival, oth- 
erwise called the “Manifestation of Christ to 
the Gentiles,” observed on the 6th of Jann- 
ary, in honor of the appearance of the star to 
the three magi, or wise men, who came to 
adore the Messiah, and bring him presents. 
It is commonly called “Twelfth Day.” Enc. 
Lond. 


HPIQUEYA. In Spanish law. A term 
synonymous with “equity” in one of its 
senses, and defined as “the benignant and 
prudent interpretation of the law according 
to the circumstances of the time, place, and 
person.” 


HPISCOPACY. The office of overlook- 
ing or overseeing; the office of a bishop, who 
is to overlook and oversee the concerns of 
the church. A form of church government 
by diocesan bishops. 


EPISCOPALIA. In ecclesiastical law. 
Synodals, pentecostals, and other customary 
payments from the clergy to their diocesan 
pishop, formerly collected by the rural deans. 
Cowell. 


EPISCOPALIAN. Of or pertaining to 
episcopacy, or to the Episcopal Church. 


EPISCOPATS#. A bishopric. 
nity or office of a bishop. 


EPISCOPUS. In the civil law. An 
overseer; an inspector. A municipal officer 
who had the charge and oversight of the bread 
and other provisions which served the citi- 
zens for their daily food. Vicat. 

In medieval history. A bishop; a 
bishop of the Christian church. 


The dig- 


Episcopus alterius mandato quam re- 
gis non tenetur obtemperare. Co. Litt. 
134. <A bishop needs not obey any mandate 
gave the king’s. 


EPISCOPUS PUERORUM. It was an 
old custom that upon certain feasts some lay 
person should plait his hair, and pat on the 
garments of a bishop, and in them pretend 
to exercise episcopal jurisdiction, and do sey- 
eral ludicrous actions, for which reason he 
was called “bishop of the boys;” and this 


426 


6 —— EEE Ss = 


—EEeEeEeEe—EeEEE————————E———— ee eee 


EQUITABLE 


36 N. Y.Su- | custom obtained in England long after sev- 


eral constitutions were made to abolish it. 
lount. 


Episcopus teneat placitum, in curia 
christianitatis, de lis que mere sunt 
spiritualia.. 12 Coke, 44. <A bishop may 
hold plea in a Court Christian of things 
merely spiritual. 


BPISTOLA. A letter; a charter; an in- 
strument in writing for conveyance of lands 
or assurance of contracts. Calvin; Spel- 
moan. 


EPISTOLAs. In the clvil law. Re- 
seripts; opinions given by the emperors in 
cases submitted to them for decision. 

Answers of the emperors to petitions. 

The answers of counsellors, (jtris-con- 
sulti,) as Ulpian and others, to questions of 
law proposed to them, were also called “epis- 
tole.” 

Opinions written out. The term original- 
ly signified the same as diter@. Vicat. 


EPOCH. The time at which a new com- 
putation is begun; the time whence dates 
are numbered. Enc. Lond. 


EQUALITY. The condition of possess- 
ing the same rights, privileges, and immuni- 
ties, and being liable to the same tiuties. 


Equality is equity. Fran. Max. 9, max. 3. 
Thus, where an heir buys in an ineumbrance 
for less than is due upon it, (except it be to 
protect an incumbrance to which he himself 
is entitled, ) he shail be allowed no more than 
what he really paid for it, as against other 
incumbrancers upon the estate, 2 Vent. 
353; 1 Vern. 49; I Salk. 155. 


EQUERRY. An officer of state under 
the master of the horse, 


EQUES. Lat. In Roman and old En- 
glish law. A knight. 


EQUILOCUS. An equal. It is men- 
tioned in Simeon Dunelm, A. D. 882. Jacob. 


EQUINOXES. Thetwo periods of the 
year (vernal equinox about Mareh 21st, and 
autumnal equinox about September 22d) 
when the time from the rising of the sun to 
its setting is equal to the time from its set- 
ing to its rising, See Dig. 48, 13, 1, 8. 


EQUITABLE. Just; conformable to tha 
principles of natural justice and right. 

Just, fair, and right, in consideration of 
the facts and circumstances of the individual 
case. 


EQUITABLE 


Existing in equity; available or suslaina- 
ble only in equity, or only upon the rulesand 
principles of equity. 


EQUITABLE ASSETS. Equitable as- 
sets are all asscts which are chargeable with 
the payment of debts or legacies in equity, 
and which do not fall under the description 
of legal assets. 1 Story, Eq. Jur. § 552. 

Those portions of the property which by 
the ordinary rules of law are exempt from 
debts, but which the testator has voluntarily 
charged as assets, or which, being non-exist- 
ent ab law, have been created in equity. 
Adams, Eq. 254, et seq. 

They are so called because they can be 
reached only by the aid and instrumentality 
of a court of equity, and beexuse Lheir distri- 


bution is governed by a different rule from | 


that which governs the distribution of legal 
assets. 2 Fonbi. Eq. b. 4, pt. 2, ¢. 2, § 1, 
and notes; Story, Eq. Jur. § 552. 


EQUITABLE ASSIGNMENT. An 
assignment which, though invalid at law, 
will be recognized and enforced in equity; e. 
g-, an assignment of a chose in action, or of 
fulure acquisitions of the assignor, 


EQUITABLE CONSTRUCTION. A 
construction of a law, rule, or remedy which 
has regard more to the equities of the par- 
ticular transaction or state of affairs involved 
than to the strict application of the rule or 
remedy; that is, a liberal and extensive con- 
struction, as opposed to a literal and restrict 
ive. 


EGUITABLE CONVERSION. The 
transformation, by a doctrine of equity, of per- 
sonalty into realty, in respect to its qualities 
and disposition, and of real estate into person- 
alty. By this doctrine, money which, by will 
or agreement, is to be invested in land, is con- 


427 


sidered and treated as realty, and land which | 


{s to be turned into money is considered and 
treated as money. 8 Wall. 214; 45 Pa. St. 
87; 61 Wis. 477, 21 N. W. Rep. 615. 


EQUITABLE DEFENSE. In English 
practice. A defense to an action on grounds 
which, prior to the passing of the common- 
law procedure act, (17 & 18 Vict. ¢. 125,) 
would have been cognizable only in a court 
of equity. Mozley & Whitley. 

In American practice. A defense which 
is available only in equity, except under the 
reformed codes of practice, where it may be 
interposed in a legal action. 


EQUITABLE ESTATE. An equitable 
estate is an estate an interest in which can 


i 


EQUITY 
only be enforeed in a court of chancery, 9 
Ohiv, 145. 

That is properly an equitable estate or in- 
terest for which a court of equity affords the 
only remedy; and of this nature, especially, 
is the benefit of every trust, express or im- 
plied, which is not converted into a legal es- 
tate by the statute of uses. ‘The rest ure 
equities of redemption, constructive trusts, 
and all equitable charges. Burt. Comp. c. 8. 


EQUITABLE MORTGAGE. A mort- 
gage arising in equity, out of the transactions 
of the parties, without any deed or express 
contract for that speeial purpose. 4 Kent, 
Comm. 150. 

A lien upon realty, which is of such achar- 
acter that a court of equity will recognize it 
as a security for the payment of money loaned 
ordue, 2 Story, Eq. Jur. § 1018. 

A mortgage upon a purely equitable estate 
or interest. 

In English law. The following mort. 
gages are equitable: (1) Where the subject 
of a mortgage is trust property, which secu- 
rity is effected either by a formal leed ora 
written memorandum, notice being given to 
the trustees in order to preserve the priority. 
(2) Where it isan equity of redemption, which 
is merely a right to bring an action in the 
chancery division to redeem the estate. (3) 
Where there is a written agreement only to 
wake a tmortgage, which creates an equitable 
lien onthe land. (4) Where a debtor depos- 
its the title-deeds of his estate with his cred- 
itor or some person on his behalf, without 
even a verbal communication. The deposit 
itself is deemed evidence of an executed agree- 
ment or contract for a mortgage for auch es- 
tate, Wharton. 


EQUITABLE WASTE. Injury to a 
reversion or remainder in real estate, which 
is not recognized by the courts of law as 
waste, but which equity will interpose to pre- 
vent or remedy. 


EQUITATURA, In old English law. 
Traveling furniture, or riding equipments, 
including horses, horse harness, ete. Reg. 
Orig. 1006; St. Westm. 2, c. 39. 


EQUITY. 1. In its broadest and most gen- 
eral signification, this term denotes the spirit 
and the habit of fairness, justness, and right 
dealing which should regulate the intercourse 
of men with mnen,—the rule of doing to ail 
others as we desire them to de to us; or, agit 
is expressed by Justinian, “to live honestly, 
to harm nobody, to render to every man his 


EQUITY 


ine.” Inst. 1,1, 8. It is therefore the syn- 
onym of natural right or justice. But in 
this sense its obligation is ethical rather than 
jural, and its discussion belongs tothe sphere 
of morals. Jt is grounded in the precepts of 
the conscience, not in any sinction of pos- 
itive law. it 

2. In a more restricted sense, the word de- 
notes equal and impartial justice as between 
twa persons whose rights or claims are in 
conflict; justice, that is, as ascertained by 


natural reason or ethical insight, but inde- | 


pendeut of the formulated body of law. This 
is not a technical meaning of the term, except 
in so far as courts which administer equity 
seek to discover it by the agencies above 
mentioned, or apply it beyond the strict lines 
of positive law. 

3. In one of its technical meanings, equity 
is a body of jurisprudence, or field of jurisdic- 
tion, differing in its origin, theory, and moth- 
ods from the common law. 


It is a body of rules existing by the side of the 
original civil law, founded on distinct principles, 
and claiming incidentally to supersede the civil 
law in virtue of a superior sanctity inherent in 
those principles. Maine, Anc. Law, 27. 

“As old rules become too narrow, or are feltto be 
out of harmony with advancing civilization, a ma- 
chinery is needed for their gradual enlargement 
and adaptation to new viewsof society. One mode 
of accomplishing this object on a large scale, with- 
out appearing to disregard existing law, is the in- 
troduction, by the prerogative of some high func- 
tionary, of a more perfect body of rules, discover- 
able in his judicial conscience, which is to stand 
side by side with the law of the land, overriding it 
in case of conflict, as on some title of inherent su- 
periority, but not purporting to repealit. Sucha 
body of rules has been callod ‘Equity.’” Holl. 
Jur, 50. 

“Kyuity,” in its technical sense, contradistin- 
guished from natural and universal equity or jus- 
tice, may well be described asa “portion of jus- 
tice” or natural equity, not embodied in legislative 
enactments, or in the rules of common law, yet 
modified by a due regard thereto ard to the com- 
plex relations and conveniences of an artificial) state 
of society, and administered in regard to cases 
where the particular rights, in respect of which 
rélief is sought, come within some gencral class of 
rights enforced at law, or may be enforced with- 
out detriment or inconvenience to the community; 
but where, as to such particular rigbts, the ordi- 
nary courts of law cannot, or originally did not, 
clearly afford relief. Rob. Eq. 


4. Inastill more restricted sense, it is a sys- 
tem of jurisprudence, or branch of remedial 
justice, administered by certain tribunals, 
distinct from the common-law courts, and 
empowered to decree “equity” in the sense 
last above given. Here it becomes a com- 
plex of well-settled and well-understood rules, 
principles, and precedents, 


428 


EQUITY, COURTS OF 


“The meauing of the word ‘equity,’ as used in 
ita technical sense in English jurispradence, comes 
back to this: that itis simply a term descriptive of 
a certain field of jurisdiction exercised, in the 
English system, by certain courts, and of which 
the extent and boundaries are not marked by lines 
founded upon principle so much as by the features 
of the original constitution of the English scheme 
of remedial law, and the accidents of its develop- 
ment.” Bisp. Hq. § 11. 

A system of jurisprudence collateral to, and in 
some respects independent of, “law,” properly 
so called; the object of which is to render the ad- 
ministration of justice more complete, by affording 
relief where the courts of law are incompetent to 
give it, or to give it with effect, or by exercising 
certain branches of jurisdiction independently of 
them. This is equity in its proper modern sense; 
an elaborate system ef rules and process, ad minis- 
tered in many cases by distinct tribunals, (termed 
“courts of chancery,”) and with exclusive juris- 
diction over certain subjects. It is “still distin- 
guished by its original and animating principle 
that no right should be without an adequate rem- 
edy,” and its doctrines are founded upon the same 
basis of natural justices; butits action has become 
systematized, deprived of any loose and arbitrary 
character which might once have belonged to it, 
and as carefully regulated by fixed rules and prece- 
deuts as the law itself. Burrill. 

Equity, in its technical and scientific legal use, 
means neither natural justice nor even all that por- 
tiou of natural justice which is susceptible of be- 
ing judicially enforced. It has a precise, limited, 
and definite signification, and is used to denote a 
system of justice which was administered in a par- 
ticular court,—the English high court of chancery, 
—which system can only be understood and ex- 
plained by studying the history of that court, and 
how it came to exercise what is known as its ex- 
traordinary jurisdiction. Bisp. Ha. § 1. 

That part of the law which, having power to en- 
force discovery, (1) administers trusts, mort- 
gages, and other fiduciary obligations; (2) admin 
isters and adjusts common-law rights where the 
courts of common law have no machinery; (3) sup- 
plies a specific and preventive remedy for com- 
mon-law wrougs where courts of common law only 
give subsequent damages. Chute, Hq. 4. 

Equity is not the chancellor’s sense of moral 
right, or his sense of what is equal and just, butis 
a complex system of established law; and an 
equitable maxim—as equality is equity—can only 
be applied according to established rules. 23 Me, 
860, 

§. Equity also signifies an equitable right, 
dt. e., aright enforceable in a court of equity; 
henee, a bill of complaint which did not shuw 
that the plaintiff had a right entitling him to 
relief was said to be demurrable for want of 
equity; and certain rights now recognized in 
all the courts are still known as “equities,” 
from having been originally recognized only 
in the court of chancery. Sweet 


EQUITY, COURTS OF, Courts which 
administer justice according to the system of 
equity, and according to a peculiar course of 
procedure or practice. See Equiry. Fre- 


quently termed “courts of chancery.” 
Bl. Comm. 92. 


Equity delights to do justice, and that 
not by halves. 5 Barb. 277, 280; Story, 
Eq. Pi. § 72. 


Equity follows the law. Talb.52. Eq- 
nity adopts and follows the rules of law in 
all cases to which those rules may, in terms, 
be applicable. Equity, in dealing with cases 
of an equitable nature, adoyts and follows 
the analogies furnished by the rules of law. 


EQUITY, ETC. 


See 1 


A leading maxim of equity jurisprudence, | 
waich, however, is not of universal applica- | 
Story, | 


tion, but liable to many exceptions. 
Eq. Jur. § 64. 


Equity looks upon that as done which 
ought to have been done, 1 Story, Kq. 
Jur. § 649. Equity will treat the subject- 
matter, as to collateral consequences and in- 
cidents, in the same manner as if the final 
acts contemplated by the parties had been ex- 


ecuted exactly as they ought to have been; 
not asthe parties might have executed them. | 


Id. 


EQUITY OF A STATUTE. By this 
phrase is intended the rule of statutory con- 
struction which admits within the operation 
of astutute a class of cases which are neither 
expressly named nor excluded, but which, 
from their analogy to the cases that are 
named, are clearly and justly within the 
spirit and general meaning of the law; such 
eases are suid to be “ wilbin the equity of the 
platute.” 


HQUITY OF REDEMPTION. The 
right of the mortgagor of an estate to redeem 
the same after it has been forfeited, at law, 
by a breach of the condition of the mortgage, 
upon paying the amount of debt, interest and 
costs. 


Equity suffers not a right without a 
remedy. 4 Bouv. Inst. no. 3726. 


EQUITY TO A SETTLEMENT. The 
equitable right of a wife, when her husband 
sues in equity for the reduction of her equita- 
ble estate to his own possession, to have the 
whole or a portion of such estate settled upon 
herself and her children. Also a similar 
right now recognized ‘by the equity courts as 
directly to be asserted against the husband. 
Also called the “ wife’s equity.” 


EQUIVALENT. In patent law. The 
term “equivalent,” when used of machines, 
has a certain definite meaning; but, when 
used with regard to the chemical actions of 


428 


ERIACH 


such fluids as ean be discovered only by ex- 
periment, it means equally good. 7 Wall. 
327. 


EQUIVOCAL. Having a double or sov- 
eral meanings or senses. See AMBIGUITY. 


HQUULEUS. 
ing confessions. 


EQUUS COOPERTUS. 
equipped with saddle and furniture. 


ERABILIS. <A maple tree. Not to be 
confounded with arabilis, (arable land.) 


ERASTIANS. The followers of Erastus. 
The sect obtained much influence in England, 
particularly among common lawyers in the 
time of Selden. They held that offenses 
against religion and morality should be pun- 


A kind of rack for extort- 


A horse 


| ished by the civil power, and not by the cen- 


sures of the church or by excommunication. 
Wharton. 


ERASURE. Theobliteration of words or 
marks froma written instrument by rubbing, 
scraping, or scratching them out. Also the 
place in adocument where a word or words 
have been so removed. The term is some- 
times used for the removal of parts of a 
wriling by any means whatever, as by can- 
cellation; but this is not an accurate use. 


ERCISCUNDUS. In the civillaw. To 
be divided. Judictum familie erciscunde, 
a suil for the partition of an inheritance, 
Inst. 4, 17, 4. An ancient phrase derived 
from the Twelve Tables. Calvin. 


“ERECT.” One of the formal words of 
incorporation in royal charters. ‘We do, 
incorporate, erect, ordain, name, constitute, 
and establish.” 


ERECTION. Raising up; building; a 
completed building. In a statute on the 
“erection” of wooien buildings, this term 
does not include repairing, alteration, enlarg- 
ing, or removal. See 45 N. Y.153; 27 Conn. 
392; 2 Rawle, 262; 119 Mass. 254; 51 Ill. 
422. 


ERGO. Lat, Therefore; hence; be- 
cause. 
ERGOLABI. In the civil law. Under- 


takers of work; contractors. Cod. 4, 59. 


ERIACH. <A term of the Irish Brehon 
law, denoting a pecuniary mulecl or recom- 
pense which a murderer was judicially con- 
demned to pay to the family or relatives of 
his victim. It corresponded to the Saxon 
“weregild.” See 4 Bl. Comm. 313, 


ERIGIMUS 430 


ERIGIMUS. We erect. One of the 
words by which a corporation may be cre- 
ated in England by the king’scharter. 1 Bl. 
Comm. 473, 


ERMINE. By metonymy, this term is 
used to describe the office or functions of a 
judge, whose state robe, lined avith ermine, 
is emblamatical of purity and honor without 
Stain. Webster. 


ERWES. In old English law. The loose 
scattered ears of corn that are ieft on the 
ground after the binding. 


EROSION. The gradual eating away of 
the soil by the operation of currents or tides. 
Distinguished from s«bmergence, which is 
tlie disappearance of the soil under the water 
and the formation of a navigable body over it. 
100 N. Y. 433, 3 N. E. Rep. 584. 


EROTOMANTIA. Sometimes also called 


“Erotico-Mania,” a disease of the brain on | 


sexual subjects. The distinction between it 
and nymphomania is that in the latter, al- 
though the condition of mind is similar, the 
diseuse is caused by a local disorder of the 
sexual organs reacting on the brain. Whar- 
ton. 


ERRANT. Wandering; itinerant; ap- 
plied to justices on circuit, and bailiffs at 
large, etc. 


ERRATICUM. In old law. A waif or 
atray; a wandering beast. Cowell. 


ERRONEOUS. Involving error; devi- 
ating from the law. This term is never used 
by courts orlaw-writers as designating a cor- 
rupt or evil act. 72 Ind. 333. 


ERRONICE. Lat. 
through error or mistake. 


ERROR. A mistaken judgment or incor- 
rect belief as to the existence or effect of mat- 
ters of fact, or a false or mistaken concep- 
tion or application of the law. 

Such a mistaken or false conception or ap- 
plication of the law to the facts of a cuuse as 
will furnish ground for a review ot the pro- 
ceedings upon a writ of error; a mistake of 
Jaw, or false or irregular application of it, 
such as vitiates the proceedings and warrants 
the reversal of the judgment. 

Error is also used as an elliptical expression 
for “writ of error;” as in saying that error 
lies; that a judgment may be reversed on 
error. 


ERROR, WRIT OF. See Writ or 
ERROR. 


Erroneously; 


ERTHMIOTUM 


Krror fucatus nuda veritate in multis 
est probabilior; et s#epenumero rationt- 
bus vincit veritatem error. Error art- 
fully disguised [or colored] is, in many in- 
stances, more probable than naked truth; and 
frequently error overwhelms truth by [its 
show of] reasons. 2 Coke, 73. 


Error juris nocet. Error of law injures. 
A mistake of the law has an injurious effect; 
that is, the party committing it must suffer 
the consequences. Mackeld. Rom. Law, 
§ 178; 1 Story, Eq. Jur. § 139, note. 


BRROR WOMINIS. Errorofname. A 
mistake of detail in the name of a person; 
used in contradistinction to error de personi, 
a mistake as to identity. 


Error nominis nunquam nocet, si de 
identitate rei constat. A mistake in the 
name of a thing is never prejudicial, if it be 
clear as to the identity of the thing itself, 
[where the thing intended is certainly 
known.] 1 Duer, Ins. 171. This maxim is 
applicable only where the means of correct- 
ing the mistake are apparent on the face of 
the instrument to be construed. Iad. 


ERROR OF FACT. That is called 
“error of fact” which proceeds either from 
ignorance of that which really exists or from 
a mistaken belief in the existence of that 
which has none. Civil Code La. art. 1821. 


ERROR OF LAW. Heis under an er- 
ror of Jaw who is truly informed of the exist- 
ence of facts, but who draws from them er- 
roneous conclusions of law. Civil Code La. 
art. 1822, 


Error qui non resistitur approbatur. 
An error which is not resisted or opposed is 
approved. Doct. & Stud. ec. 40. 


Errores ad sua principia referre, est 
refellere. Torefer errors to their sources is 
to refute them. 3Inst.15. To bring errors 
to their beginning is to see their last, 


Errores scribentis nocere non debent. 
The mistakes of the writer ought not to 
harm. Jenk. Cent. 324. 


ERRORS EXCEPTED. A phrase ap- 
pended to an aecount stated, in order to ex- 
cuse slight mistakes or oversights. 


ERTHMIOTUM. Inold English law. A 
meeting of the neighborhood to compromise 
differences among themseives; a court held 
on the boundary of two lands. 


ERUBESCIT LEX FILIO8, ETC. 


Erubescit lex filios castigare parentes. 
8 Coke, 116. The Jaw blushes when children 
correct their parents. 


ESBRANCATURA,. In old law. A 
cutting off the branches or boughs of trees. 
Cowell; Spelman. 


ESCALDARE. Toscald. It issaid that 
to scald hoys was one of the ancient tenures 
in serjeanty. Wharton. 


ESCAMBIO. In old English law. A 
writ of exchanve. A license in the shupe of 
a writ, formerly granted toan English mer- 
chant to draw a bill of exchange on another 
in foreign parts. Reg. Orig. 194. 


ESCAMBIUM., 
term, signifying exchange. 
ESCAPE. The departure or deliverance 


out of custody of a person who was lawfully 
imprisoned, before he is entitled to his liberty 
by the process of law. 

The volintarily or negligently allowing 


An old English law 


431 


any person lawfully in confinement to leave | 


the place. 2 Bish. Crim. Law, § 917. 

Escapes are either voluntary or negligent. 
The former is the case when the keeper vol- 
untarily concedes to the prisoner any liberty 
not authorized by law. The latter is the case 
whien the prisoner contrives to leave his pris- 
on by foreing his way out, or any other ineans, 
without the knowledge or against the will of 
the keeper, but through the latter’s caretess- 
ness or the insecurity of the building. 


ESCAPE WARRANT. In English 
practice. This was a warrant granted to re- 
take a prisoner committed to the custody of 
the queen’s prison who had escaped there- 
from. It was obtained on aflidavit from the 
judge of the court in which the action had 
been brought, and was directed to all the 
sheriffs throughout England, commanding 
them to retake the prisoner and commit him 
to gaol when and where taken, there to re- 
main until the debt was satisfied. Jacob; 
Brown. 


ESCAPIO QUIETUS. In old English 
law. Delivered from that punishment which 
by the laws of the forest lay upon those whuse 
beasts were found upon forbidden land. 
Jacob. 


ESCAPIUM. That which comes by 
chance or accident, Cowell. 


ESCEHPPA. Ameasureofcorn. Cowell. 


Eschieta derivatur a verbo Gallico 
eschoir, quod est accidere, quia accidit 


ESCHEATOR 


domino ex eventu et ex insperato. Ce. 
Litt. 938. Escheat is derived from the French 
word “eschoir,” whieh signifies to happen, 
because it falls to the lord froman event and 
from an unforeseen circumstance. 


Eschets vulgoe dicuntur que deci- 
dentibus iis que de rege tenent, cum non 
existit ratione sanguinis heres, ad fiscum 
relabuntur. Co. Litt. 13. Those things are 
commonly called “escheats” which revert to 
the exchequer from a failure of issue in those 
who hold of the king, when there does not 
exist any heir by consanguinity. 


ESCHEAT. In feudallaw. Escheatis 
an obstruction of the course of descent, and 
consequent determination of the tenure, by 
some unforeseen contingency, in which case 
the land naturally results back, by a kind of 
reversion, to the original grantor, or lord of 
the fee. 2 Bl. Comm. 15. 

It is the casual descent, in the nature of 
forfeiture, of lands and tenements within his 
manor, to a lord, either on failure of issue of 
the tenant dying seised or on account of the 
felony of such tenant. Jacob. 

Also the land or fee itself, which thus fell 
back to the lord. Such lands were called 
“exeadentie,” or “terre excadentiales.” 
Fleta, lib. 6, c. 1; Co. Litt. 13a. 

In American law. Escheat signifies a 
reversion of property to the state in conse- 
quence of a want of any individual competent 
to inherit. The state is deemed to occupy the 
place and hold the rights of the feudal lord. 
See 4 Kent, Comm. 423, 424. 

“Escheat at feudal law was the right of the lord 
of a fee to re-enter upon the same when it became 


vacant by the extinction of the blood of the tenant. 
This extinction might either be per defectum san- 


| guints or else per detictum tenentis, where the 


course of descent was broken by the corruption of 
the blood of the tenant, Asa fee might be holden 
either of the crown or from someinferior lord, the 
escheat was not alwuys tothe crown. The word 
‘escheat,’ in this country, at the present time, 
merely indicates the preferable right of the state 
to an estate left vacant, and without there being 
any one in existence able to make claim thereto, * 
29 Amer. Dec. 232, note. 


ESCHEAT, WRIT OF. A writ which 
anciently lay for a lord, to recover possession 


of iands that had esclieated to him. Reg. 
Orig. 164b; Fitzh. Nat. Brev. 143. 
ESCHEATOR. In English law. The 


name of an officer who was appointed in every 
county to look after the escheats which fell 
due to the king in that particular county, 
and to cartify the same into the exchequer, 
An escheator could continue in office for one 


Ga 


ESCHECCUM 


year only, and was notre-eligible until three 
yeurs. 
such officer at the present day. Brown. See 
10 Vin. Abr. 158; Co. Litt. 138, 


ESCHECCUM. 


: In old English law. A 
jury or inquisition. 


ESCHIPARE, To build or equip. Du 
Cange. 


ESCOT. A tax formerly paid {n_ hor- 
oughs and corporations towards the support 
of the community, whiel is called “scot and 
lot.” 


ESCRIBANO. In Spanish law. An 
officer, resembling a uolary in French law, 
who has authority to set down in writing, 
and verily by his attestation, transactions 
and contracts between private persons, and 
also judicial acts and proceedings. 


ESCRITURA. InSpanishlaw. A writ- 
ten instrument. Every deed that is made 
by the hand of a public esertbano, or notary 
of a corporation or council (cozcejo,) or sealed 
with the seal of the king or other authorized 
persons. White, New Recop. b. 3, tit. 7, 


Ge Os 


ESCROQUERIE, 
ling, cheating. 


ESCROW. A scroll; a writing; a deed. 
Particularly a deed delivered by the grantor 
into the hands of a third person, to be held 
by the latter until the happening of a con- 
tingeney or performance of a condition, and 
then by him delivered to the grantee. 

A grant may be deposited by the grantor 
with a third person, to be delivered on the 
performance of a condition, and on delivery 
by the depositary it will take effect. While 
in the possession of the third person, and 
subject to condition, it is called an “escrow.” 
Civil Code Cal. § 1057; Civil Code Duk. 
§ 609. 

The state or condition of a deed which is 
conditionally held by a third person, or the 
possession and retention of a deed by a third 
person pending a condition; as when an in- 
strument is said to be delivered “in escrow.” 
This use of the term, however, is a perver- 
sion of its meaning. 


ESCROWL. In old English law. An 
escrow; ascroll, “And deliver the deed to 
kB stranger, as an escrowl.” Perk. e. 1, § 9; 
Id. c. 2, §§ 137, 138. 


ESCUAGE. Service of the shield. One 
of the varieties of tenure in knight’s service, 


Fr. Fraud, swind- 


432 


ESPURIO 


the duty imposed being that of accompanying 


There does not appear to exist any the king to the wars for forty days, at the 


tenant’s own charge, or sending a substitute, 
In later times, this service was commuted 
for a certain payment in money, which was 
then called “escuage certain.” See 2 BI, 
Comm. 74, 75. 


ESCURARE. 
Cowell. 


To seour or cleanse. 


ESGLISHE, or EGLISH. A church. 
Jacob, 


ESKETORES. Robbers, or destroyers of 
other men's lands and fortunes. Cowell. 


ESKIPPAMENTUM, ‘Tackle or furni- 
ture; outfit. Certain townsin England were 
bound to furnish certain ships at their own 
expense and with double skippage or tackle. 
Cowell. 


ESKIPPER, ESKIPPARE, Toship. 
ESKIPPESON. Shippage, or passage by 


| sea. Spelled, also, “skippeson.” Cowell. 
ESLISORS. See Exisors. 
ESNE. In old law. A hireling of serv- 


ile condition, 


ESNECY. Seniority; the condition or 
right of the eldest; the privilege of the eldest- 
born, Particularly used of the privilege of 
the eldest among coparceners to make nu first 
choice of purparts upon a voluntary parti- 
tion. 

ESPERA. A period of time fixed by law 
or by a court within which certain acts are 
to be performed, e. g., the production of pa- 
pers, payment of debts, ete. 


| ae is a 


ESPERONS. 


ESPLEES. Anold term forthe products 
whieh the ground or Jand yields; as the hay 
of the meadows, the herbage of the pasture, 
corn of arable fields, rent and services, etc. 
The word has been anciently applied to the 
land itself, Jacob. 


Spurs. 


ESPOUSALS. A mutual promise be- 
tween a man and a woman to marry each 
other at some other time. It differs froma 
marriage, because Lhen the contract is com- 
pleted. Wood, Inst. 57. 


ESPURIO. Span. In Spanish law. A 
spuricus child; one begotten on a woman 
who has promiscuous intercourse with many 
men. White, New Recop. b. 1, tit. 5, ec. 2, 


g 1. 


ESQUIRE 


ESQUIRE. In Englishlaw. A title of 
dignity next above gentleman, and below 
knight. Also a title of office given to sher- 
iffs, serjeants, and barristers at law, justices 
of the peace, and cthers. 1 Bl. Comm. 406; 
3 Steph. Comm. 15, note; Tomlins. 


ESSARTER. L. Fr. To cut down 
woods, to clear jand of trees and underwood; 
properly to thin woods, by cutting ‘trees, ete., 
at intervals. Spelman. 


ESSARTUM. Woodlands turned into 
tillage by uprooting the trees and removing 
the underweod. 


ESSENCH. That which is indispensable 
to that of which it is the essence. 


ESSENCE OF THE CONTRACT. 
Any condition or stipulation in a contract 
which is mutually understood and agreed by 
the parties to be of such vital importance 
that a sufficient performance of the contract 
cannot be had without exact compliance with 
itis said to be “of the essence of the con- 
tract.” 


ESSENDI QUIETUM DE TOLONIO. 
A writ to be quit of toll; it lies for citizens 


and burgesses of any city or town who, by | 


charter or prescription, ought to be exempted 
from toll, where the same is exacted of them. 
Reg. Orig. 248. 


ESSOIN, o. Inold English practice. To 
present or offer an excuse for not appearing 
in court on an appointed day in obedience 
to a suinmons; to cast an essoin. Spelman, 
This was anciently done by a person whom 
the party sent for that purpose, called an 
“essoiner.” 


ESSOIN, mn. Inold English law. An ex- 
cuse for not appearing in court at the return 
of the process. Presentation of such excuse, 
Spelman; 1 Sel, Pr. 4; Com. Dig. “ Exoine,” B 
1. ssoin is not now allowed at all in per- 
sonal actions. 2 Term 16; 16 East, 7a; 
8 B). Comm. 278, note. 


ESSOIN DAY. Formerly the first gen- 
eral return-iay of the term, on which the 
courts sat to receive essoins, é. e., exeuses 
for parties who did not appear in court, ac- 
cording to the summons of writs. 8 BI. 
Comm. 278; Boote, Suit at Law, 130; Gilb. 
Com. Pj. 13; 1 Tidd, Pr. 107. But, by St. 
11 Geo. IV. and 1 Wm. IV. c. 70, § 6, these 
days were done away with, as a part of the 
tearm. 

AM, DICT. LAW—28 


433 


ESTABLISH 


ESSOIN DE MALO VILLA is when 
the defendant is in court the first day; but 
gone without pleading, and being afterwards 
surprised by sickness, etc., cannot attend, 
but sends two essviners, who openly protest 
in court that he is detained by sickness in 
such a village, that he cannot come pro du- 
eraré and pro perdere; and this will be ad- 
mitted, for it lieth on the plaintiff to prove 
whether the essoin is true or not. Jacob. 


ESSOIN ROLL. A roll upon which es- 
soins were formerly entered, together with | 
the day to which they were adjourned. 
Boote, Suit at Law, 180; Rose. Real Act. 162, 
168; Gilb. Com. Pl. 18. 


ESSOINIATOR., 
essoin. 


A person who made an 


Est aliquid quod non oportet etiam si 
licet; guicquid vero non licset certe 
non oportet. Hob. 159. There is that 
which is not proper, even though permit- 
ted; but whatever is not permitted is certain- 
ly not proper. 


EST ASCAVOTR. Itis to be understood 
or known; “it is to-wit.” Litt. §§ 9, 45, 46, 
57,59. A very common expression in Little- 
ton, especially at the commencement of a sec- 
tion; and, according to Lord Coke, “it ever 
teacheth us some rule of law, or general or 
sure leading point.” Co. Litt. 16. 


Est autem jus publicum et privaturn, 
quod ex naturalibus preceptis aut gen- 
tium, aut civilibus est collectum; et 
quod in jure secripto jus appellatur, id 
in lege Anglis rectum esse dicitur. 
Public and private law is that which is col- 


| lected from natural precepts, on the one hand 


of nations, on the other of citizens; and that 
which in the civil law is called “jus,” that, in 


the law of England, is said to be right. Co. 
Litt. 553. 
Est autem vis legem simulans. Vio- 


lence may also put on the mask of law. 


Est ipsorum legislatorum tanquam 
viva vox. The voice of the legislators them- 
selves is like the living voice; that is, the 
language of a statule is to be understood and 
interpreted like ordinary spoken languages. 
10 Coke, 1048. 


Est quiddam perfectius in rebus lie- 
itis. Hob. 159. There is something more 
perfect in things allowed. 


ESTABLISH. This word occurs fre- 
quently in the constitution of the United 


ESTABLISH 434 


States, and it is there used in different mean- 
ings: (1) To settle firmly, to fix unalter- 
ably; as to establish justice, which is the 
avowed object of the constilution, (2) To 
inake or form; as to establish a uniform 
rule of naturalization, and uniform laws on 
the subject of.bankruptcies, which evidently 
does not mean that these laws shal! be unal- 
terably established as justice. (8) To found, 
to create, to regulate; as: “Congress shall 
have power to establish post-roads and post- 
offices.” (4) To found, recognize, confirm, or 
admit; as: “Congress shall muke no law re- 
specting an establishment of religion.” (6) 
To create, to ratify, or confirm; as: “We, 
the people,” etc., “do ordain and establish 
this constitution.” 1 Story, Const. § 454. 


Establish ordinarily means to settle certainly, or 
fix permanently, what was before uncertain, doubt- 
ful, or disputed. 49 N. H. 280. 


ESTABLISHMENT. An ordinance or 
statute. Especially used of those ordinances 
or statutes passed in the reign of Edw. I. 
2 Inst. 156; Britt. c. 21. 


ESTABLISHMENT OF DOWER. 
The assurance of dower nade by the husband, 
or his friends, before or at the time of the 
marriage. Britt. ec. 102, 103. 


ESTACHE. A bridge or stank of stone 
or timber. Cowell. 


ESTADAL. InSpanishlaw. InSpanish 
America this was a measure of lanl of six- 
teen square varas, or yards. 2 White, Recop. 
139. 


ESTADIA. InSpanishlaw. Delayina 
voyage, or in the delivery of cargo, caused 
by the charterer or consignee, for which de- 
mutrage is payable, 


ESTANDARD. L.Fr. A standard, (of 
weights and measures.) So called because it 
stinds constant and immovable, and hath all 
other measures coming towards it for their 
zonformity. Termes de la Ley. 


ESTANQUES. 
sivers. 


ESTATE. 1. The interest which any one 
has in lands, or in any other subject of prop- 
erty. 1 Prest. Est. 20. An estute in lands, 
tenements, and hereditaments signifies such 
interest as the tenant has therein. 2 BL. 
Comm. 103. The condition or circumstance 
in which the owner stands with regard to 
his property. 2 Crabb, Real Prop. p. 2, § 942. 
In this sense, “estate” is constantly used in 


Wears or kiddles in 


tension, and comprehends every species of prop- 


ESTATE 


| “right,” “title,” and “interest,” and is, in 
a great degree, synonymous with all of them. 
See Co. Litt. 345. 

“fistate in land” means the kind and quantum 
of one’s interest thercin. The term is susceptible 
of every possible variation in which man can be 
related to the soil. 2 Mass. 284. 

“Estate” is a very comprehensive word, and sig- 
nifies the quantity of interest which a person has, 
from absolute ownership down to naked posses- 
sion, and the quantity of interest is determined 
by the duration and extent of the right of posses- 
sion. 9 Cow. 73, 81. 


property (real or personal) in which one has 
a right or interest; the subject-matter of 
ownership; the corpus of property. Thus, 
we speak of a “valuable estate,” “all my es- 
tate,” “separate estate,” “trust estate,” ote. 
This, also, is its meaning in the classifica- 
tion of property into “real estate” and “per- 
sonal estate.” 

_ The word “estate” isa word of the greatest ex- 


2. In another sense, the term denotes the 
| 


erty, real and personal. It describes both the 
corpus and the extent of interest. 55 Me. 284. 

“Estate” comprehends everything a man owns, 
real and persoual, and ought not to be limited in 
its construction, unless connected with some other 
word which must necessarily have that effect. 
Cam. & N. 202. 

It means, ordinarily, the whole of the property 
owned by any one, the realty as well as the per- 
sonalty. Busb. Eq. 141. 


3. In a wider sense, the term “estate” de- 
notes a man's whole financial status or con- 
dition,—the aggregate of his interests and 
concerns, so far as regards his situation with 
reference to wealth or its objects, including 
debis and obligations, as well as possessions 
and rights. 


Here notonly property, but indebtedness, is part. 


ofthe idva. The estate does not consist of the as- 
sets only. If it did, such expressionsas “insolvent 
estate” would be misnomers. Debts and assets, 
tulen together, constitute the estate. Itis only by 
regarding the demands against the original pro- 
prietor as constituting, together with his resources 
available to defray them, one entirety, that the 
phraseology of the law governing what is called 
“settlement of estates” can be justified. Abbott. 


4. Ths word is also used tu denote the ag- 
gregate of a man’s financial concerns (as 
above) personified. Thus, we speak of 
“debts due the estate,” or say that “A.’s es- 
tate is a stockholder in the bank.” In this 
sense it is « fictitious or juridical person, the 
idea being that a man’s business status con- 
tinues his existence, for its special purposes, 
until its final settlement and dissolution. 

5. In its broadest sense, “estate” signifies 
the social, civic, or political condition or 


conveyances in connection with the words | sianding of a person; or a class of persons 


ESTATE 


435 


ESTATE IN FEE-TAIL 


considered as grouped for social, civic, or no- | for some fixed and determinate period of time; 


litical purposes; as in the phrases, “the third 
estate,” “the estates of the realm.” See 1 
BI, Comm. 158. 

“state” and “degree,” when used In the sense 
of an individual’s personal stutus, are synonymous, 
and inilicate the individual’s rank in life. 15 Me. 
122. 

ESTATE AD REMANENTIAM. An 
estate in fee-simple. Glan. L 7, ¢. 1. 


ESTATE AT SUFFERANCE. Thein- 
terest of a tenant who has come rightfully 


into possession of lands by permission of the | 


owner, and continues to occupy the same 
after the period for which he is entitled to 
hold by such permission. 1 Waslb. Real 
Prop. 392; 2 31. Comm. 150; Co, Litt. 578. 


ESTATE AT WILL. A species of es- 
tate less than freehold, where lands and ten- 
ements are let by one man to another, to have 
and to hold at the will of the lessor; and the 


session, 2 Bl. Comm. 145; 4 Kent, Comm, 
110; Litt. § 68. Or it is where lands are let 
without limiting any certain and deter- 
minate estate. 2 Crabb, Real Prop. p. 403, 
§ 1543. 


ESTATE BY ELEGIT. See E.rart, 


ESTATE BY STATUTE MER- 
CHANT. An estate whereby the creditor, 
under the custom of London, retained the 
possession of all his debtor's lands until his 
debts were paid. 1 Greenl. Cruise, Dig. 515. 
See STATUTE MERCHANT. 


ESTATE BY THE CURTESY. Ten- 
ant by the curbesy of England is wherea man 
survives a wife who was seised in fee-simple 
or fee-tail of lands or tenements, and has had 
issue male or female by her born alive and 
eapable of inheriting the wife’s estate as lieir 
to her: in which case he will, on the decease 
of his wife, hold the estate during his life as 
tenant by the curtesy of England. 2 Crabb, 
Real Prop. § 1074. 


ESTATE FOR LIFE. A freehold es- 
tate, not of inheritance, but which is held by 
the tenant for lis own life or the life or lives 
of one or more other persons, or for an in- 
delinite period, which may endure for the life 
or lives of persons in being, and not beyond 
the period of a life. 1 Washb. Real Prop. 88. 


ESTATE FOR YEARS. A species of 
estate less than freehold, where a man has 
an inierest in lands and tenements, and a 
possession thereol, by virtue of such interest, 


as in the ease where lands are Jet for the term 
of a certain number of years, agreed upon 
between the lessor and the lessee, and the 
lessee enters thereon. 1 Steph. Comm. 263, 
264. Biackstone calls this estate a “con- 
tract” for the possession of lands or tene- 
ments for some determinate period. 2 BI. 
Comm. 140. 


ESTATE IN COMMON. An estate in 
lands held by two or more persons, with in- 


| terests accruing under different titles; or ac- 


eruing under the same title, but at different 
periods; or conferred by words of limitation 
importing that the grantees are to take in 
distinct shares. 1 Steph. Comm. 623. See 
TENANCY TIN COMMON. 


ESTATE IN COPARCHTIARY. An 
estate which several persons lold as one heir, 
whether male orfemale. This estate has the 


three unities of time, title, and pussession; 
tenant by force of this lease obtains pos- | 


but the interests of the coparceners may be 
unequal. 2 Washb. Real Prop. 414; 2 Bh. 
Comm. 188. See CoparncuNnArRY. 


ESTATE IN DOWER. A species of 
life-estate which a woman is, by law, enti- 
tled to cluim on the death of her husband, 
in the lands and tenements of which he was 
seised in fee during the marriage, and which 
her issue, if any, might by possibility have 
inherited. 1 Steph. Comm. 249; 2 Bl. Comm. 
129; Cruise, Dig. tit. 6; 2 Crabb, Real Prop. 
p. 124, § 1117; 4 Kent, Comin. 55. See 
DOWER. 


ESTATH IN EXPECTANCY. One 
which is not yet in possession, but the enjoy- 
mentof which is to begin at a future time; a 
present or vested contingent right of future 
enjoyment. These are remainders and re- 
versions. 


ESTATE IN FEH-SIMPLE. The es- 
tate which a man has where lands are given 
to him and to his heirs absolutely without 
any end or limit put to his estate. 2 Bl. 
Comm. 106; Plowd. 557; 1 Prest. Est. 425; 
Litt. § 1. 

The word “fee,” used alone, is a sufficient 
designation of this species of estate, and heuce 
“simple” is not a necessary part of the title, 
but it is added as a means of clearly distin. 
guishing this estate from a fee-tail or from 
any variety of conditional estates. 


ESTATE IN FHE-TAIL, generally 
termed an “estate fail.” An estate of in- 
heritance which a man has, to hold to him 
and the heirs of his body, or to him and par- 


ESTATE IN JOINT TENANCY 436 


ficular heirs of his body. 1 Steph. Comm. 
228. Anestateof inheritanee by force of the 
statute De Donis, limited and restrained te 
some particular heirs of the donee, in exclu- 
sion of others. 2 Crabb, Real Prop. pp. 22, 
23, § 971; Cruise, Dig. tit. 2,c.1, § 12. See 
TaiL; Frs-Tatn. <° 


ESTATE IN JOINT TENANCY. An 
estate in lands or tenements granted to two 
or more persons, to hold in fee-simple, fee- 
tail, for life, for years, or at will. 2 Bl. 
Comm. 180; 2 Crabb, Real Prop. 987. An 
estite acquired by two or more persons in 
the same land, by the samme title, (not being 
a title by deseent,) and at the same period; 
and without any limitation by words import- 
ing that they are to take in distinct shares. 
1 Steph. Comm, 312. The most remarkable 
incident or consequences of this kind of estate 
is that it is subject to survivorship. 


ESTATE IN POSSESSION. An es- 
tate whereby a present interest passes to and 
resides in the tenant, not depending on any 
subsequent circumstance or contingency. 2 
Bl. Comm, 163. An estate where the ten- 
ant is in actual pernancy, or receipt of the 
rents and other advantages arising therefrom. 
2 Crabb, heal Prop. p. 958, § 2322. 


ESTATE IN REMAINDER. An e¢s- 
tate limited to take effect in possession, orin 
enjoyment, or in both, subject only to any 
term of years or contingent interest that may 
intervene, immediately after the regular ex- 
piration of a particular estate of freehold 
previously created together with it, by tho 
same instrument, out of the same subject of 
property. 2 Fearne, Rem. § 159; 2 Bi. 
Comm. 163; 1 Greenl. Cruise, Dig. 701. 


ESTATE IN REVERSION. A spe- 


cies of estate in expectancy, created by opera- | : 
oe by ) to create an estate tail, cannot do so, because 


tion of law, being the residue of an estate left 
in the grantor, to commence in possession 
after the determination of some particular 
estate granted out by him. 2 Bl. Comm. 
175; 2 Crabb, Real Prop. p. 978, § 2845. The 
residue of un estate left inthe grantor or his 
heirs, or in the heirs of a teslulor, commenc- 
ing in possession on the determination of a 
particular estate granted ordevised. 1 Rev, 
St. N.Y. p. 718, (723,) $12. An estate in 
reversion is where any estate is derived, by 
grant or olherwise, out of a larger one, leav- 
ing in the original owner an ulterior estate 
immediately expectant on that which is sode- 
rived; the latter interest being called the 
“particular estate,” (as being only a small 


ESTATE UPON CONDITION 


part or particula of the original one,) aad 
the ullerior interest, the “reversion.” 1 
Steph. Comm. 290. Sae Revuksion. 


ESTATE IN SEVERALTY. An es- 
tate held by a porson in his own right only, 
without any other person being joined or 
connecled with him in point of interest, dur- 
ing hisestate. This isthe most common and 
usual way of holding anestate. 2 Bl Comm, 
179; Cruise, Dig, tit. 18, c. 1, § 1. 


ESTATE IN VADIO. An estate in 
gage or pledge. 2 Bl. Comm. 157; 1 Steph. 
Comm, 282. 


ESTATE OF FREEHOLD. An estate 
in land or other real property, of uncertain 
duration; that is, either of inheritance or 


which may possibly last for the life of the | 


tenant at the least, (as distinguished from a 
leaseliold;) and held by a free tenure, (as dis- 
tinguished from copyhold or villeinage.) 


ESTATE OF INTERITANCH A 
species of freehold estate in lands, otherwise 
called a “fee,” where the tenant is not only 
entitled to enjoy the land for his own life, but 
where, after his death, it is cast by the law 
upon the persons who successively represent 
him iz perpetuum, in rightof blood, accord- 
ing to a certain established order of descent. 
1 Steph. Comm. 218; Litt. § 1; 1 Rev. St. N. 
Xap. 717, (722,) § 2. 


ESTATE PUR AUTRE VIE. Estate 
foranctler’s life. An estate in lands which 
aman holds for the lifeof another person. 2 
Bl. Comm. 120; Litt. § 56. 


ESTATE TAIL. See Estate IN FEE- 
TAIL. 


ESTATE TAIL, QUASI. When a ten- 
ant for life grants his estate toa wan and his 
heirs, as these words, though apt and proper 


the grantor, being only tenant for life, cannot 
grant in perpetwum, therefore they are said 
to create an estate tail quasi, or improper. 
Brown, 


ESTATE UPON CONDITION. An 
estate in lands, the existence of which de- 
pends unon the happening or not happening 
of some uncertain event, whereby the estate 
may be either originally created, or enlargei, 
or finally defeated. 2 BI. Comm. 151; 1 
Steph. Comm. 276; Co. Litt. 201a. 

An estate having a qualification annexed 
to it, by which it may, upon the happening 
of a particular event, be created, or enlarged, 
or destroyed. 4 Kent, Comm. 121, 


ESTATE, ETC. 


ESTATE UPON 
PRESSED. An estate granted, either in 
fee-simple or otherwise, with an express 
qualification annexed, whereby the estate 
granted shall either commenee, be enlarged, 


or be defeated upon performances or breach | 


of such qualification or condition. 2 BI. 
Comm. 154. 


An estate which is so expressly defined 


CONDITION EX- | 


and limited by the words of iis creation that 


it cannot endure for any longer time than till 
the contingency happens wpou which the es- 
tate is to fail. Steph. Comm. 278. 


ESTATH UPON CONDITION IM- 
PLIED. An estate having a condition an- 
nexed to it inseparably from ils essence and 
constitution, aluhough no condition be ex- 
pressed in words. 2 BI. Comm. 152; 4 Kent, 
Comm, 121. 


ESTAYES OF THER REALM. The 
lords spiritual, the lords temporal, and the 
commons of Great Britain. 1 BI. Comm. 153. 
Sometimes called the “three estates.” 


ESTENDARD, HSTHENDART, or 
STANDARD, An ensign for horsemen in 
war. 


ESTER IN JUDGMENT. To appear 
before a tribunal either as plaintiff or defend- 
ant, Kelham. 


ESTIMATE, This word is used to ex- 
press the mind or judgment of the speaker 
or writer on the particular subject under con- 
sideration. It implies a calculation or com- 
putation, as to estimate the gain or loss of an 
enterprise. 3? Hun, 203. 


ESTOP. To stop, bar, or impede; to pre- 
vent; to preclude. Co, Litt. 852a. See Es. 
TOPPEL. 


ESTOPPEL. A bar or impediment 
raised by the law, which precludes a man 
from alleging or from denying a certain fact 
or state of facts, in consequence of his previ- 
ous allegation or denial or conduct or ad- 
Mission, or in consequence of a final adjudi- 
cation of the matter in a court of law. 

A preciusion, in law, which prevents a 
man from alleging or denying a fact, in con- 
sequence of his own previous act, allegation, 
or denial of a contrary tenor. Steph. TP). 239, 

An admission of so conclusive a nature 
that the party whom it affects is not permit- 
ted to aver against it or offer evidence to 
controvert it. 2 Smith, Lead. Cag. 778. 


Estoppel is that which concludes and “shuts a 
man's mouth from speaking the trath.” When a 
fact has been agreed on, or decided in a court of 


487 ESTOPPEL BY MATTER IN PAIS 


record, neilher of the purties shall be allowed to 
call it in question, and have it tried over again at 
any time thereafter, so long as the judgment or 
decree stands unreversed; and when parties, by 
deed or solemn act in pats, agree on a state of 
facts, and act on it, neither shall ever afterwards 
be allowed to zainsay a fact so agreod on, or be 
heard to dispute it; in other words, his mouth is 
shut, and be shall not say that is not true which 
he had before in asolemn manner asserted to be 
true. Gusb. 157. 

Hgutteble estoppel (or estoppel by conduct, 
or in pais) is the species of estoppel which 
equity puts upolu a person who has made a 
false representation or a concealment of mi- 
terial facts. with knowledge of the facts, 
toa party ignorant of the trath of the mat- 
ter, with the intention that the other party 
shonid act upon it, and with the result that 
such party is actually induced toact upen it, 
to his damage. Bigelow, Estop. 484. 

In pleading. A plea, replication, or oth- 
er pleading, which, without eonfessing or 
denying the matter of fact adversely alleged, 
relies merely on some matter of estoypel as a 
ground for excluding the opposite party from 
the allegation of the fact. Steph. Pl. 219; 3 
Bl. Comm, 308. 

A plea which neither admits nor denies tlie 
facts alleged by the plaintiff, but denies lis 
Tight to allege them. Gould, PL c. 2, § 39. 

A special pleain bar, whieh happens where 
aman has done some act or executed some 
deel whieh precludes him from averring any- 
thing to the contrary. 3 Bl. Comm, 308. 


ESTOPPEL BY DEED is where a party 
has exeented a deed, that is, a wriling under 
seal (as a bond) reciting a certain fact, andis 
thereby precluded from afterwards denying, 
inany action brought upon tliat instruments 
the fact so recited. Steph. Pl. 197. A man 
shall always be estopped by his own dead, or 
not permitted to aver or prove anything in 
contradiction to what he has once go solemnly 
and deliberately avowed, 2 Bl. Comm. 293; 
Plowd. 434. 


ESTOPPEL BY MATTER IN PAIS. 
An estoppel by the conduct or admissions of 
the party; an estoppel not arising from deed 
or matter of record. Thus, where one man 
has accepted rent of another, he will be es- 
topped from aiterwards denying, in any 
action with that person, that he was, at the 
time of such acceptance, his tenant. Steph. 
Peay 

The doctrine of estoppels in pais is one 
which, so far at least as that term is con- 
cerned, has grown up chiefly within the last 
few years. But it is, and always was, a fa- 


ESTOPPEL, ETC, 


miliar principle in the law of contracts. It 
Hes at tle foundation of morals, and is a car- 
dinal point in the exposition of promises, that 
one shall be bound by the state of facts which 
he has induced another to act upon. Red- 
field, C. J., 26 Vt. 366, 375. 


ESTOPPEL BY MATTER OF REC- 
ORD. An estoppel founded upon matter 
of record; as a confession or adniission made 
in pleading in a court of record, which pre- 
cludes the party from afterwards contesting 
the same fact in the same suit. Steph. PL 
ee 


ESTOPPEL, COLLATERAL. The col- 
lateral determination of a question by acourt 
having general jurisdiction of the subject. 


Estoveria sunt ardendi, arandi, con- 
struendi et claudendi. 18 Coke, 68. Es- 
tovers are of fire-bote, plow-bote, house- 
bote, and hedge-bote. 


ESTOVERIIS HABENDIS. A writ 
for a wife judicially separated to recover her 
alimony or esiovers. Obsulete. 


ESTOVERS. <An allowanee made to a 
person out of an estate or other thing for his 
or her support, as for food and raiment. 

An allowance (more commonly called “ali- 
mony”) granted to a woian divorced a 
mensea et thore, for her support out of her 
lhusband’s estate. 1 1. Couim, 441, 

The right or privilege which a tenant has 
to furnish himself with so much wood from 
the demised premises as may be sufficient or 
necessary for his fuel, fences, and other agri- 
cultural operations. 2B), Comm, 35; Woodf. 
Landi. & Ten. 232; 10 Wend, 639. 


ESTRAY. Cattle whose owner is un- 
known. 2 Kent, Comm. 359; Spelman; 29 
Towa, 437. Any beast, not wild, found with- 
in any lordship, and not owned by any man, 
Cowell; 1 Bl, Comm, 297. 

Estray mst be understcod as denoting a wan- 
dering beast whose owner is unknown to the per- 
son who takes itup. 27 Wis. 422; 20 Iowa, 487. 

An estray is an animal that has escaped from its 
owner, and wanders or strays about; usually de- 
fined, at comman law, asa wandering animal whose 
owner isunknown. An animal cannot beanestray 
when on the range where it was raised, and per- 
mitted by itsowner torun, and especially when the 
owner is known to the party whotekes it up. The 
fact of its being breachy cr vicious does not make it 
an estray. 4 Or. 208. 


ESTBREAT, « To take out a forfeited re- 
eognizance from the records of a court, and 
return it tothe court of exchequer, to be pros- 
ecuted. See EsTrmat, n. 


458 


ET ALIUS 


ESTREAT, n. (From Lat. exitractum.} 
In English iaw. A copy or extract from fne 
book of estreats, that is, the rolls of any 
court, in which the amercements or fines, 
recognizances, ete., imposed or taken by that 
court upon or from the accused, are sel down, 
and which are to be levied by the bailiff or 
other officer of the court. Coweil: Brown, 

A forfeited recognizance taken out from 
among the other records for the purpose of 
being sent up to the exchequer, that the par- 
ties might be sued thereon, was said to ba 
estreated. 4 Bl. Comm. 253. 


ESTRECIATUS. 
plied to roads. 


ESTREPE. To strip; to despoil; to lay 
waste; to commit waste upon an estate, as 
by cutting down trees, removing buildings, 
ete. To injure the value of a reyersionary 
interest by stripping or spoiling the estate. 


ESTREPEMENT. <A species of aggra- 
vated waste, by stripping or devastating the 
land, to the injury of the revyersioner, and 
especially pending a suit for possession. 


ESTREPEMENT, WRIT OF, This 
was a common-law writ of waste, which lay 
in particular for the reyersioner against the 
tenant for life, in respect of damage or in- 
jury tothe land committed by the latter. As 
it was only auxiliary to a real action for re- 
covery of the land, and as equity afforded 
the same relief by injunction, the writ fell 
into disuse. 


ET. And, Theintroctuctory word of sey- 
eral Latin and law French phrases former- 
ly in common use, 


ET ADJOURNATUR. And it is ad- 
jonrned. A phrase used in the ald reports, 
where the argument of a cause was adjourned 
to another day, or where a second argument 
was had. I Keb, 692, 754, 773. 


EY AL. An abbreviation for et atii, 
“and others,” 


ET ALIT E CONTRA. And others on 
the other side. A phrase constantly used in 
the Year Books, in describing a joinder in 
issue. P, 1 Edw. II. Prist; et aiit & con- 
tra, et sie ad patriam: ready; and others, 
2coutra, and soto the country. T. 3 Edw. 
Til. 4. 


ET ALIUS. Andancther, The abbre- 
viation e¢ al. (sometimes in the plaral writ- 
ten et als.) is afiixed to the name of the per- 
son firsl mentioned, where there are several 
plaintiffs, grantors, persons addressed, ete. 


Straightened, as ap- 
Coweli. 


ET ALLOCATUR 


ET ALLOCATUR. And it is allowed. 


ET CHTERA. And others; and other 
things; and so on, In its abbreviated form 
(ele.) this phrase is frequently affixed to one 
of a series of articles or names to show that 
others are intended to follow or understood 
to be included. So, after reciting the initia- 
tory words of a set formula, or a clause al- 
teady given in full, ete. is added, as an ab- 
breviation, for the sake of convenience. 


ET DE CEO SE METTENT EWN LE 
PAYS. L. Fr. And of this they put them- 
selves upon the country. 


ET DE HOC PONIT SE SUPER 
PATRIAM. And of this he puts himself 
upon the country. The formal conclusion of 
& common-law plea in bar by way of traverse, 
The literal translation is rebained in the mod- 
ern form. 


ET EI LEGITUR IN HAC VERBA. 
L. Lat. And itis read to him in these words. 
Words formerly used in entering the prayer 
of oyer on record. 


ET HABEAS IBI 
BREVE. And have you then there this 
writ. The formal words directing the return 
ofa writ. he literal translation is retained 
in the modern form of a considerable num- 
ber of writs. 


ET HABUIT. And he hadit. <A com- 
mon phrase in the Year Books, expressive of 
the allowance of an application or demand by 
a party. Parn. demanda la view. Lt ha- 
buit, ete. M. 6 Edw, III. 49. 


ET HOC PARATUS EST VERIFI- 
CARE. And this he is prepared to verify. 
The Latin form of concluding a plea in con- 
fession and avoidance. 


These words were used, when the pleadings were 
in Latin, at the conclusion of any pleading which 
contained new affirmative matter. They expressed 
the willingness or readiness of the party so plead- 
ing to estublish by proof the matter alleged in his 
pleading. A pleading which concluded in that 
manner was technically said to “conclude with a 
verification,” in contradistinction to a pleading 
which simply denied matter alleged by the oppo- 
site party, and which for that reason was said to 
*eonclude to the country,” because the party 
merely put himself upon the country, or left the 
matter to the jury. Brown. 


ET HOC PETIT QUOD INQUIRA- 
TUR PER PATRIAM,. And this he prays 
may be inquired of by the country. The con- 
ciusion of 4 plaintiff’s pleading, tendering an 
issue to the country. 1 Salk. 6, Literally 
translated in the modern forms. 


TUNC HOC 


439 


ca 


ET UX. 


ET INDE PETIT JUDICIUM. And 
thereupon [or thereof] he prays judgment. 
A clause at the end of pleadings, praying the 
judgment of the court in favor of the party 
pleading. It occurs as early as the time of 
Braeton, and is literally translated in the 
modern forms. Bract.fol.57); Crabb, Eng. 

| Law, 217. 


ET INDE PRODUCIT SECTAM. 
And thereupon he brings suit. The Latin 
conclusion of a declaration, except against 
attorneys and other officers of the court. 3 
Bi. Comm, 295. 


ET MODO AD HUNC DIEM. Lat. 
And now at this day. This phrase was the 
formal beginning of an entry of appearance 
or of a continuance. The equivalent Kn- 
glish words are still used in this connection. 


ET NON. Lat. Andnot. <A technical 
phrase in pleading, which introduces the neg- 
ative averments of a special traverse. . It 
has the same force and effect as the words 
“absque hoc,” and is occasionally used instead 
of the latter. 


ET SEQ. An abbreviation for et sequen- 
tia, “and the following.” Thus a reference 
to “p. 1, et seq.” means “page first and the 
following pages.” 


ET Sic. And s0. In the Latin forms 
of pleading these were the introinctory words 
of a special conclusion to a plea in bar, the 
object being to render it positive and not ar- 
gumentative; as ef sie nil debet. 


ET SIC AD JUDICIUM. And soa to 
judgment. Yearb, T. 1 Edw. I. 10. 


ET SIC AD PATRIAM. Andsotothe 
country. A phrase used in the Year Books, 
to record an issue to the country. 


ET SIC FECIT. 
P. 9 ten, Vile 7. 


ET SIC PENDET. 


And hledid so. Yearb. 


And so it hangs. 


a point was left undetermined. T. Ray. 
168. 


ET SIC ULTHRIUS. And so on; and 
so further; and so forth. Fleta, lib. 2, ¢. 50, 
§ 27. 


ET UX. An abbreviation for eé xor,— 
“and wife.” Where a grantor’s wife joing 
him in the converance, if is sometimes ex- 
pressed (in abstracts, etc.) to be by “A B 
et uu.” 


ne 


A term used in the old reports to signify that 


“1 


ETIQUETTE, ETC. 


ETIQUETTE OF THE PROFES- 
STON. The code of honor agreed on by mut- 
ual understanding and tacitly accepted by 
members of the legal profession, especially 
by the bar. Wharton. 


Eum qui nocentem infamat, non est 
requum et bonum ob eam rém condem- 
pari; delicta enim nocentium nota esse 
oportet et expedit. It is not just and 
proper that he who speaks ill of a bad man 
should be condemned on that account; for it 
is fitting and expedient that the crimes of 
bad men should be known. Dig. 47, 10, 17; 
1 Bl. Comm, 125. 


EUNDO ET REDEUNDO. Lat. In 
going and returning. Applied to vessels. 
30. Rob. Adm. 141. 


EUNDO, MORANDO, ET REDEUN- 
DO. Lat. Going, remaining, and return- 
ing. A person who is privileged from arrest 
(a3 a witness, legislator, etc.) is generally so 
privileged ewndo, morando, et redeundo; that 
is, on his way to the place where his duties 
are to be performed, while he remains there, 
and on his return journey. 


EUNOMY. Equal laws and a well-ad- 
justed constitution of government. 


BHUNUCH. Amaleof the human species 
who has been ecustrated. See Domat, liv. 
prcl, tit. 2, § 1, n. 10. 


EVASIO. Lat. In old practice. 
cape from prison or custody. 
312. 


EVASION. A subtle endeavoring to set 
aside truth or to escxpe the punishment of 
the law. This will not be allowed. If one 
person says lo another that he will not strike 
him, but will give him a pot of ale to strike 
lirst, and, accordingly, the latter strikes, the 
returning the blow is punishable; and, if the 
person first striking is killed, it is murder, 
for no man shall evade the justice of the law 
by such a pretense. 1 Hawk. P. C. 81. So 
no one may plead ignorance of the law to 
evade it. Jacob. 


An es- 
Reg. Orig. 


EVASIVE. Tending or seeking to evade; 
elusive; shifting; as an evasive arguient or 
plea. 


EVENINGS, In old English law. The 
delivery at even or night of a certain por- 
tion of grass, or corn, elc., to a customary 
tenant, who performs the service of cutting, 
mowing, or ceiping for his lord, given him 


440 


EVICTION 


as a gratuity or encouragement. 
Gloss. 


Kennett, 


Eventus est qui ex caus& sequitur; 
et dicitur eventus quia ex causis evenit. 
9 Coke, 81. An event is that which follows 
from the eause, and.is called an “event” be- 
cause it eventuates from causes. 


Eventus varios res nova semper ha- 
bet. Co. Litt. 379. A new matter alwaya 
produces various events. 


Every man must be taken to contem- 
plate the probable consequences of the 
act he does. Lord Ellenborough, 9 East, 
277. A fundamental maxim in the law of 
evidence, Best, Pres. § 16; 1 Phil. Ev, 444. 


EVES-DROPPERS. See EaAveEs-DRor 
PERS. 


EVICT. In the civil law. Torecover 
anything from a person by virtue of the 
judgment of a court or judicial sentence. 

At common law. ‘Todispossess, or turn 
out of the possession of lands by process of 
law. Also to recover land by judgment at 
law. “Ifthe land is evicted, no rent shall 
be paid.” 10 Coke, 128a. 


EVICTION. Dispossession by process 
of law; the act of depriving a person of the 
possession of lands which he has held,-in 
pursuance of the judgment of a court. 

Technically, the dispossession must be by 
judgmentof law; if otherwise, itis an ovster. 

Bviction implies an entry under paramount title, 
#0 as to interfere with tho rights of the grantee. 
The object of the party making the entry is imma- 
terial, whether ™ ba to take all or a part of the 
land itself or merely an incorporeal right. Phrascs 
equivalent in meaning are “ouster by paramount 
title,” “entry and disturbance, ” “possession under 
an elder title,” and the like. 5 Conn, 497. 

Eyiction is an actual expulsion of the lessea out 
of all or some part of the demised premises. 4 
Cow, 581, 585. 

In a more popular sense, the term denotes 
turning a tenant of land out of possession, 
either by re-entry or by legal proceedings, 
such as an action of ejectment. Sweet. 

By a loose extension, the term is some- 
times applied to the ousting of a person from 
the possession of chattels; but, properly, it 
applies only to realty. 

In the civil law. The abandonment 
which one is obliged to make of a thing, in 
pursuance of a sentence by which he is con- 
demned todoso. Poth, Contr. Sale, pt. 2, ¢.1, 
§ 2, art. 1, no. 83. The abandonment which 
a buyer is compelled to make of a thing pur- 
chased, in pursuance of a judicial sentence. 


EVICTION 


Evietion Ja the loss suffered by the buyer 
of the totality of the thing sold, or of a part 
thereof, occasioned by the right or claims of 
athird person, Oivil Code La. art. 2500. 


EVIDENCE. Any species of proof, or 
probative matter, legally presented at the 
trial of an issue, by the act of the partics and 
through the medium of witnesses, records, 
documents, conerate objects, ote,, for the pur- 
pose cf inducing belief in the miuds of the 
rourt or jury as to their contention. 

The word “evidence,” in legal acceptation, in- 
cludes all the means by which auy alleged matter 
of fact, the truth of which is submitted to invesii- 
gation, is established or disproved. 1 Green}. Ev. 
can § 1, 

That which Is legally submitted to a jury, to en- 
able them to decide upon the questions in dispute 
or issue. as pointed out by the pleadings, and dis- 
tixguished from all comment and argument, is 
termed “evidence.” 1 Starkie, Ev. pt. 1, § 3. 


Synonyms distinguished. The term 
“evidence” is to be earefully distinguished 
from its synonyms “proof” and “testimony.” 
“Prool” is the logically suilicient reason for 
assenting to the truth of a proposition ad- 
vanced. In ifs juridical sense if is a term of 


441 


wide import, and comprebends everything | 


that may be adduced at a trial, within the 
legal rules, for the purpose of producing con- 
viction ia the mind of judge or jiry, aside 
from mere argument; that is, everything that 
has a probative force intrinsically, and not 
merely a3 adeduction from, or combination 
ef, original probative facts. Tut “evidence” 
is a narrower term, and includes only such 
hinds of proof as may be legally presented at 
a trial, by the act of the parties, and through 
the aid ot such concrete facts as witnesses, 
records, or other documents, Tlins, to urge 
a presumption of law in support of one’s case 
is udducing proof, but it is not offering evi- 
dence. “Testimony,” again, is a still more re- 
stricted term. It properly means only such ev- 
idence us is delivered by a witness on the trial 
oi a cause, either orally or in the form of affi- 
davits or depositions. Thus, an ancient deed, 
when offered under proper circumstances, is 
evidence, but it could not strictly be called 
“testimony.” “Belief” isa subjective condi- 
tion resulting from proof. Itisacenviction 
of the truth of a proposition, existing in the 
mind, and induced by persuasion, proof, or 
argument addressed to the judgment. 

Ths bill of exceptions states that all the “testi- 
mony” is in the record; but this is not equivalent 
to a stafament that alt the “evidence” is in the 
record, Testimony is one species of evidence. 
But the word “evidence” is 2 generic term 
which includes every apecics of it. And, in a 


EVIDENCE 


bill of exceptions, the general term covering all 
species should be used in the statement as to its 
embracing the evidence, not the term “testimoay, ” 
which is satisfiedif the bill only contains all of that 
species of evidence, The statement that all the 
testimony is in the record may, with reference to 
judicial records, properly be termed an “ufiirma 
tive pregnant.” 60 Ind. 157. 

The word “proof” seems properly to mean any- 
thing which serves, either imviediately or medi- 
ately, to convince the mind of the truth or false- 
hood ofa factorpropesition. It is also applicd to 
the conviction generated in the mind by proof 
properly socalled. The word “evidence” signifies, 
in its original sense, the state of heing evident, #. e., 
plain, apparent, or notorious, But by an almost 
peculiar inflection of our language, it is applied to 
that which tends to render evident or to generate 
proof. Best, Ev. §§ 10, 11. 

Classification. Thereare many species of 
evidence, and itis susceptible of being classi. 
fied on several different principles. ‘The more 
usual divisions are here subjoined. 

Evidence is elther judicial or extrajudicial. 
Judicial evidence is the means, sanctioned by 
law, of ascertaining in a judicial proceeding 
the truth respecting a question of fact, (Code 
Civil Proe. Cal. § 1823;) while extrajudicial 
evidence is that which is used to satisfy pri- 
vate persons as to facts requiring preof. 

Evidence is either primary or secondary. 
Primary evidence is that kind of evidence 
which, under every possible circumstance, af- 
fords the greatest certainty of the fact in 
question. Thus, a written instrument is 
itself the best possible evidence of its exist- 
ence and contents. Serondary evidence is 
that which is inferior to primary. Thus, a 
copy of an instrument, or oral evidence of its 
contents, is secondary evidence of the instru. 
ment und contents. Code Civil Prac. Cal, 
&§ 1829, 1880. 

Primary evidence is such as in itself dnes not 
indicate the existence of other and better preof, 
Secondary evidence is such as from necessity in 
some cases is substituted for stronger and better 
proof. Code Ga. 1882, § 3761. 

Primary evidence is that particular means of 
proof which is indicated by the nature of the fact 
under investigation, as the most natural and sate 
isfactary; the best evidence the nature of the casa 
admits; such evidence as may be called for in the 
first instance, upon the principle that its non-pro- 
duction gives rise to a reasonable suspicion that if 
produced it would tend against the tact alleged. 
Abbcit. 

Evidenee is either direct or tndirect, Di- 
rect evidence is that which proves the fact in 
dispute directly, without an inference or pre- 
sumption, and which in itself, if trae, con- 
elusively establishes that faet; for example, 
if the fact in dispnte be an agreement, the 
evidence of a witness who was present and 
witnessed the making of itis direct. Indi- 


M 


EVIDENCE 


rect evidence is that which tends to establish 
the fact in dispute by proving another, and 
which, though true, doves not of itself conclu- 
sively establish that fact, but which alfords an 
inference or presumption of its existence; for 
example, 2 witness proves an admission of 
the party to the fact in dispute. This proves 
a fact, from which the fact in dispute is in- 
ferred. Code Civil Proc. Cal. §§ 1831, 1832. 

Evidence is either intrinsic or eatrinsie. 
Intrinsic evidence is that which is derived 
from a document without anything to ex- 
plain it. Extrinsic evidence is external ev- 
idence, or that which is not contained in the 
body of an agreement, contract, and the like. 

In respect to its nature, evidence is also of 
the following several kinds: 

Circumstantial evidence. ‘This is proof of 
various facts or circumstances which ugu- 
ally altend the main fact in dispute, and there- 
fore tend te prove its existence, or tosustain, 
by their consistency, the hypothesis claimed. 

Civeumstontiat evidence consists in reasoning 
from facts which are known or proved, to estab- 
lish such as are conjectured to exist. 82 N.Y. 141. 

Presumptive evidence. This consists of 
inferences drawn by human experience from 
the connection of cause and effect, and ob- 
servations of humanconduct. Code Ga. 1832, 
§ 3748. 

Prima facie evidence. It is that which 
suflices for the proof of a particular fact, un- 
til contradicted and overcome by vther evi- 
dence; for example, the certificate of a re- 
cording officer is prima facie evidence of a 
record, but if may afterwards be rejected 
upon proof that there is no such record. 
Code Civil Proc. Cal. § 1833. 

Prima facie evidence is evidence which, stand- 
ing alone and unexplained, would maintain the 
proposition and warrant the conclusion te support 
which it is introduced. 97 Mass. 230. 

Partial evidence, is that which goes to 
establish a detached fact, in a series tend- 
ing to the fact m dispute. It may be re- 
ceived, subject to be rejected as incompetent, 
unless connected with the fact in dispute by 
proof of other facts; for example, on an issue 
of title to real property, evidence of the con- 
tinued possession of a remote oreupant is par- 
tial, for it is of a detached fact, which may 
or may not be afterwards connected with the 
fact in dispute. Code Civil Proc. Cal. 
§ 1854. 

Satisfactory evidence. That evidence is 
deemed salisfactory which ordinarily pro- 
duces moral certainty or conviction in an un- 
prejudiced mind. Such evidence alone will 
justify a verdict. Evidence less than this is 


442 


EW GRICE 


denominated “slight evidence.” Code Civil 
Proc. Cal. § 1835. 

Conclusive evidence. Conclusive or un- 
answerable evidence is that which the law 
does not permit to be contradicted; for ex- 
ample, the recor! of a court of competent ju- 
risdiction cannot be contradicted by the par- 
ties to it. Code Civil Proc. Cal. § 18387. 

Indispensable evidence is that without 
which a particular fact cannot be proved. 
Code Civil Proc. Cal. § 1836. 

Doeumentary evidence is that derived from 
conventional symbols (such as letters) by 
which ideas are represented on material sulb- 
stances. 

Hearsay evidence is the evidence, not of 
what the witness knows himself, but of what 
he has heard from others, 

In respect to its object, evidence is of the 
following several kinds: 

Substantive evidence is that adduced for 
the purpose of proving a fact in issue, 28 Op- 
posed to evidence given for the purpose of 
discrediting a witness, (7. ¢., showing that he 
is unworthy of belief,) or of corroborating 
his testimony. Best, Ev. 246, 773, 803. 

Corroborative evidence is additional evir 
dence of a different character to the same 
point. Code Civil Proc. Cal. § 1839. 

Cumulative evidence is additional evidence 
of the same character to the same puint. 
Civil Code Proc. Cal. § 1838. 


EVIDENCH OF DEBT. A term ap- 
plied to written instruments or securities for 
the payment of money, importing on their 
face the existence of a debt. 1 Rev. St. N. 
We p, ogo, & Sa, 


HVIDENCE OF TITLE. A deed or 
other document establishing the title to prop- 
erty, especially real estate. 


EVIDENTIARY. Having the quality of 
evidence; constituting evidence; evidencing. 
A. term introduced by Bentham, and, from 
its convenience, adopted by other writers. 


BEVOCATION. In French law. The 
withdrawal of a cause from the cognizance of 
an inferior court, and bringing it before an- 
other court or judge. In some respects this 
process resembles the procesedings upon cer- 
tiorart. 


EWAGE. (L.Fr, we, water.) In old 
English law. Toll paid for water passage. 
The same a8 aguage. Tomlins. 


EWERICH. Adultery; spouse breach, 
marriage breach. Cowell; Tomlins. 


EWRY 
HWRY. An office in the royal house- 


of. Wharton. 


EX. 1. A Latin preposition meaning 
from, out of, by, on, on account of, or ac- 
cording to. ‘ 

2. A preiix, denoting removal or cessation. 
Prefixed to the name of an office, relation, 
status, etc., it denotes that the person spoken 
of once occupied that office or relation, but 
does so no longer, or that he is now ovwdé of it, 
Thus, ea-mayor, ew-partner, ex-judge. 

3. A prefix which is equivalent to “ with- 
out,” “reserving,” or “excepting.” In this 
use, probably an abbreviation of “except.” 
Thus, ev-interest, ev-coupons. 

“A sale of bonds ‘ex. July coupons’ means a sale 
reserving the coupons; that is, a sale in which the 
goller receives, in addition to the purchase price, 
the benefit of the coupons, which benefit he may 
realize either by detaching them or receiving from 
the buyer an equivalent consideration.” 94 N.Y. 
445. 

EX ABUNDANTI. Out of abundance; 
abundantly; superfuously; more than suffi- 
cient. Calvin. 


EX ABUNDANTI CAUTELA. Lat. 
Out of abundant caution. “The practice 
has arisen cbundanti cautela.” 8 East, 326; 
Lord Ellenborough, 4 Maule & 8. 544. 


EX ADVERSO. On the other side. 2 
Show. 461. Applied to counsel. 


EX AMQUITATEH. Accerding to equl- 
ty; inequity. Fleta, lib. 3, ¢. 10, § 3. 


EX AiQUO ET BONO. A phrase de- 
tived from the civil law, meaning, in jus- 
tice aud fairness; according to what is just 
and wood; according to equiby and conscience. 
8 Bl. Comm. 163. 


EX ALTERA PARTE. Of the other 
part. 


Kx antecodentibus et consequentibus 
fit optima interpretatio. 
pretation [of a part of an instrument] is 
made from the antecedents and the conse- 
quents, [from the preceding and following 
parts.] 2 Inst. 317. The law will judgo of 
a (eed or other instrument, consisting of 
divers parts or clauses, by looking at the 
whole; and will give to each part its proper 
office, 80 as to ascertain and carry vut the in- 
tention of the parties. Broom, Max. *577. 
The whole instrument igs to be viewed and 
compared in allits parts, so that every part 
of it nay be made consistent and effectual. 
2 Kent, Comm. 555, 


The best inter- | 


£33 


EX CONTINENTI 


EX ARBITRIO JUDICIS. 
4 Bi. 
Comm. 394. A term of the civil law. Inst. 
4, 6, 31. 

EX ASSENSU CURIA. By or with 
the consent of the court. 


EX ASSENSU PATRIS. By or with 
the consent of the father. A species of dow- 
er ad ostinim ceclesie, during the life of the 
father of the husband; the son, by the fa- 
ther’s consent expressly given, endowing his 
wife with parcel of his father’s lands. Abol- 
ished by 3 & 4 Wm. LV. c. 105, § 13. 


EX ASSENSU SUO. With his assent. 
Formal words in judgments for damages by 
default. Comb. 220. 


EX BONIS. Of the goods or property. 
A term of the civil law; distinguished from 
in bonis, as being descriptive of or applicable 
to property not in actual possession. Calvin. 


EX CATHEDRA. From the chair. 


| Originally applied to the decisions of the 


popes from their cvtkedra, or chair. Hence, 
authoritative; having the weight ef au- 
thority. 


EX CAUSA. L. Lat. By title. 


EX CERTA SCIENTIA. Ofcertain or 
sure knowledge. These words were ancient- 
ly used in patents, and imported full knowl- 
edge of the subject-matter on the part of the 
king. See 1 Coke, 406. 


EX COLORE. Bycolor; under color of; 
under pretense, show, or protection of. 
Thus, ex colore officii, under color of office. 


EX COMITATHEH. Ont of comity or 


, courtesy. 


BEX COMMODATO. From or out of 
loan. <A term applied in the old law of Eng- 
land to a right of action arising out ofa loan, 
(commodatium.) Glanv. lib. 10, ¢. 13; 1 

tveve, ng. Law, 166. 


EX COMPARATIONE SCRIPTO- 


RUM. By a comparison of wrilings or 
handwritings. A term in the law of evi- 
dence. Best, Pres. 218. 


EX CONCESSIS. J rom the premises 
granted, According to what has been already 
allowed. 


EX CONSULTO. With consultation or 
deliberation. 


EX CONTINENTI. Immediately; 
without any interval or delay: incontinent 
ly. A term of the civillaw. Calvin. 


At, In, or © 
bold where the table linen, etc.,is taken care | upon the discretion of the judge. 


M 


EX CONTRACTU 444 


EX CONTRACTU. From or out of a 
contract. In both the civil and the common 
law, rights and causes of action are divided 
Into two classes, —those arising ex contractu, 
(from a contract,) and those arising ex delie- 
to, (irom a delict or tort.) See 3 Bl. Comm. 
117; Mackeld. Rome Law, $ 384. 


EX CURIA. Out of court; away from 
the court, 


EX DEBITO JUSTITIM. From or as 
a debt of justice; in accordance with the re- 
quirement of justice; of right; as a matter of 
right. The opposite of ex gratia, (gq. v.) 3 
Bl. Comm. 48, 67. 


EX DEFECTU SANGUINIS. 
failure of blood; for want of issue, 


EX DELICTO. From a delict, tort, 
fault, crime, or malfeasance. In both the civil 
and the common law, obligations and causes 
ot action are divided into two great classes, 
—those arising ex contractu, (out of a con- 
tract,) and those ex delicto. Tho latter are 
such as grow out of or are founded upon a 
wrong or tort, é. g., trespass, trover, repley- 
in. These terms were known in English law 
at a very early period. See Inst. 4, 1, pr.; 
Mackeld. Rom. Law, § 384; 3 Bl. Comm. 
117; Bract. fol. 1018. 


Ex doelicto non ex supplicio emergit 
infamia. Infamy arises from the crime, not 
from the punishment. 


EX DEMISSIONE, (commonly abbrevi- 
ated ex dem.) Upon the demise. A phrase 
forming part of the title of the old action of 
ejectment. 


EX DIRECTO. Directly; immediately. 
Story, Bills, § 199. 


From 


Ex diuturnitate temporis, omnia pree- 
sumuntur solemniter esse acta. From 
leng(h of time [after lapse of time] all things 
are presumed to have been done in due form. 
Go. Litt. 66; Best, Ev. Introd, § 43; 1 Greeni. 
Ev. § 20. 


EX DOLO MALO. Ont of fraud; ont 
of deceitful or tortious conduct. A phrase 
applied to obligalions and causes of action 
vitiated by fraud or deceit. 


Ex dolo malo non oritur actio. Out 
of fraud no action arises; fraud never gives 
aright of action. No court will lend its aid 
to aman who founds his cause of action upon 
an immoral or illegal act. Cowp. 343; 
Breow, Max. 729. 


EX INTEGRO 


Ex donationibus autem feoda mili- 
taria vel Magnum serjeantium non con- 
tinentibus oritur nobis quoddam nomen 
generale, quod est socagium. Co. Litt. 
86. From grants not containing military 
fees or grand serjeanty, a kind of general 
hame is used by us, which is “socage.” 


EX EMPTO. Out of purchase; founded 
on purchase. <A termof the civil law, adopt. 
ed by Bracton. Inst. 4, 6, 28; LBract. fol. 
102. See Actio Ex Imrro. 


EX FACIE. From the face; apparently; 
evidently. A term applied to what appears 
on the face of a writing. 


EX FACTO. From or in consequence 
of a fact or action; actually. Usually ap- 
plied to an unlawful or tortious act as the 
foundation of a title, etc. Sometimes used 
as equivalentto “de facto.” Bract. fol. 172. 


Ex facto jus oritur. The law arises out 
of the fact. Broom, Max. 102. <A rule of 
law continues in abstraction and theory, un- 
til an act is done on which it can attach and 


assume a3 ib were a budy and shape. LBesi, 
Ev. Introd. § 1. 
EX FICTIONE JURIS. By a fiction 


of law. 


Ex frequenti delicto augetur poona. 
2 Inst. 479. Punisliment increases with in- 
creasing crime. 


EX GRATIA. Out of grace; a3 a mat- 
ter of grace, favor, or indulgence; gratui- 
tous. <A term applied to anything accorded 
as a favor; as distinguished from that which 
muy be demanded ew dedito, as a matter of 
right. 


EX GRAVI QUERELA. 
tho grievous complaint.) In old English 
practice, The name of a writ (so called from 
its initial words) which lay for a person to 
whom any finds or tenements in fee were de- 
vised by will, (within any city, town, or bor- 
ough wherein lands were devisable by cus- 
tom,) and the heir of the devisor entered and 
detained them from him, TFitzh. Nat. lirev. 
198, L, et seq.; 3 Reeve, Eng. Law, 49. 
Abolished by St. 3 & 4 Wm. [V.c. 27, § 36. 


EX HYPOTHESI. By the hypothesis; 
upon the suppostlion; upon the theory or 
facts assumed, 


EX INDUSTRIA. With contrivance or 
deliberation; designedly; on purpose, See 1 
Kent, Comm. 818; 1 Wheat. 304. 


BX INTEGRO. Anew; afresh. 


(From oron 


HX JUSTA CAUBA _ 445 


EX JUSTA CAUSA. From a just or 
lawful cause; by a just or legal title. 


EX LEGE. By the law; by force of law; 
as a matter of law. 


EX LEGIBUS. According to the laws. 
A phvase of the civil law, which means ac- 
cording to the intent or spirit of the law, as 
well as according Lothe words or letter. Dig. 
50, 16, 6. See Calvin. 


EX LICENTIA REGIS. Byiheking’s 
licenge. 1 B11. Comm. 168, note. 


EX LOCATO. From or ont of lease or 
letting. A term of the civil law, applied to 
actions or rights of action arising out of the 
contract of locaium, (g.v.) Inst. 4, 6, 23. 
Adopted at an early period in the law of Eng- 
land, Braci. fol. 102; 1 Reeve, Eng. Law, 
168. 


EX MALEFICIO. Growing oui of, or 
founded upon, misdoing or tort. This term 


is frequentiy used in the civil law as the | 


synonym of “ex delicto,” (q. v.,) and is thus 
contrasted with “ew contractu.” In thissense 
it is of more rare occurrence in the common 
law, though found in Bracton, (fois. 99, 
101, 102.) 


Ex maleficio non oritur contractus, 
A contract cannot arise out of an act radically 
vielous and illegal. 1 Term 734; 3 Term 
422; Broom, Max. 704. 


Hx malis moribus bons leges nate 
sunt, 2 Inst. 161. Good laws arise from 
evil morals, z. ¢., are necessitated by the evil 
behavior of men. 


EX MERO MOTU, Of his own mere | , 
; Comm. 445; Smith, Cont. 85, 86. 


motion; of his own accord; voluntarily and 
without prompting or request. Royal let- 
ters patent which are granted at the crown’s 
own instance, and without request made, 
are said to be granted ex mero motz. 
When a court interferes, of ifs own motion, 
to object to an irregularity, or to do some- 
thing which the parties are not strictly en- 
titled to, but which wili prevent injustice, it 
is said to act ex mero moti, or ex praprio 
moiu, or sua sponte, all these terms being 
here equivalent. 


EX MORA. From or in consequence of 
delay. Interest is allowed ew mora; that is, 
where there has been delay in returning a 
sum borrowed. A term of the civil law. 
Story, Bailm. § 84. 


EX MORE. According to custom. 
Calvin. 


EX OFFICIO INFORMATION 


Kx multitudine signoruam, colligitur 
identitas vera. From a great number of 
signs or marks, true identity is gathered or 
madenup. Bac. Max. 103, in regula 25, A 
thing deseribed by a great number of marks 
is easily identified, though, us to some, the 
description may not he striellp earrest. Id, 


EX MUTUO. From or out of loxn. In 
the old Jaw of England, a debt was suid te 
arise ex muizo when one lent another any- 
thing which consisted in number, weight, or 
measure. 1 Reeve, Eng. Law, 159; Bract. 


fol. 99. 


EX NECHSSITATH. Of necessity, 8 
Rep. Ch. 123. 


EX WECEHSSITATE LEGIS. Fromor 
by necessity of law. 4 Bl. Comm. 394. 


EX NECESSITATE REI. From the 
necessity or urgency of the thing or case. 2 
Pow. Dev. (by Jarman,) 308. 


Ex, nihilo nihil fit. From nothing noth- 
ing comes. 13 Wend. 178, 221; i8 Wend. 
257, 801. 


Ex nudo pacto non oritur f{nescitur] 
actio. Outofa nudeor naked pact [that 
is, a bare parol agreement without consider- 
ation] no action arises. Bract. fol. 99; 
Fleta, lib. 2, ¢. 56, § 3; Plowd, 305. Out of 
a promise neither attended with particular 
solemnity (such as Lelongs to a specialty) 
nor with any consideration no legal liability 
can arise. 2 Steph. Comm. 113. <A_ paroi 
agreement, without a valid consideration, 
cannot be made the foundation of an action. 
A leading maxim beth of the civil and com- 
mon law. Cod. 2, 3, 10; Td. 5, 14, 1; 2 Bl. 


EX OFFICIO. From office; by virtue 
of the office; without any other warrant or 
appointment than that resulting from the 
holding of a particular office. Powers may 
be exercised by an officer which are not spe- 
cifically conferred upon him, but are neces- 
sarily implied in his office; these are ex afficte. 
Thus, a judge has ea officio the powers of a 
conservator of the peace. Courts are bound 
to notices public stalutes judicially and ex 
officio. 

ExX OFFICIO INFORMATION. In 
English law. <A criminal information filed 
by the attorney general ee officio on beliali of 
the erown, in the court of queen’s bench, for 
offenses more immediately affecting the gov- 
ernment, and to be distinguished from infor- 
mations in which the crown is the nominal 


i 


EX OFFICIO CATH 


prosecutor. Mozley & Whitley; 4 Steph. 
Comm, 372-378. 


EX OFFICIO OATH. An oath taken 
by offending priests; abolished by 13 Car. II. 
sity e rea bes 


Ex pacto illicito non» oritur actio. 
From an illegal contract an action does not 
atise, Broom, Max. 742. See7 Clark & F. 
729, 


EX PARTE. On one side only; by or 
for one party; done for, in behalf of, or on 
the application of, one party only. <A judi- 
cial proceeding, order, injunction, ete., ia 
said to be ew parte when it is taken or 
pranted at the instance and for the benefit 
of one party only, and without notice to, or 
contestation by, any person adversely in- 
terested. 

“Ha parte,” in the heading of a reported 
case, signifies that the name following is that 
of the party upon whose application the case 
ig heard. 

Tn its primary sense, ex parte, as applied to an 
application in a judicial proceeding, means that it 
ls made by & person who is not a party to the pro- 
ceeding, but who has an interest in the matter 
which entitles him tomaketheapplication, Thus, 
ina bankruptcy proceeding or an administration 
action, 2n application by A. B., a creditor, or the 
like, would be describedas made “ex parte A. B.,” 
i. e., On the partof A. B. 

Tn its more usual sense, ex parte Means that an 
application is made by one party to a preceeding 
in thé absence of the other. Thus, an ex parte 
injunction is one granted without the opposite 
party having had notice of the application. It 
would not be called “ex parte” if he had proper 
notice of it, and chose uat to appear to oppose it. 
Bweet. 


EX PARTE MATERNA. On the moth- 
er’s side; of the maternal line. 


EX PARTE PATHRNA. On the fath- 
er’s side; of the paternal line. 


The phrases “ex parte miterna” and “ex parte 
paterna” denote the line or blood of the mother or 
father, and have no such restricted or limited 
aense as from the mother or father exclusively. 
24.N. J. Law, 481. 


EX PARTE TALIS. A writ that lay 
for a bailiff or receiver, who, having audi- 
tors appointed to take his accounts, cunnot 
obtain of them reasonable allowance, but is 
cast into prison, Fitzh. Nat, Brey. 129, 


Ex paucis dictis intendere plurima 
possis. Litt. § 884. You can imply many 
things from few expressions. 


Ex paucis plurima concipit ingenium. 
Litt. § 550. From afew words or hints the 
understanding conceives raany things. 


446 


| extends to criminal and not to civil cases. 


EX POST FACTO LAW 


EX POST FACTO. After the faci; by 
an act or fact occurring after some previous 
act or fact, and relating thereto; by subse- 
quent matter; the opposite of ah inttio. 
Thus, a deed muy be good ab initio, or, if 
invalid at its inception, may be confirmed by 
matter ex post facto, 


EX POST FACTO LAW. A law passed 
after the occurretice of a fact or commission 
of an act, which retrospectively changes the 
legal consequences or relations of such fuct or 
deed, By Const. U.S. art, 1, § 10, the states 
are forbidden to pass “any ea post facto law.” 
In this connection the phrase has a much 
narrower meaning than its literal transiation 
would justify, as will appear from the ex- 
tracls given below. 


The phrase “ex past facto,” in the constitution, 
Aud 
under this head is included: (1) Every law that 
makes an action, doue before the passing of the 
law,and which was innocent when done, criminal, 
and puuishes such action. (2) Every law that ag- 
gravates a crime, or makes it greater than it was 
when committed. (3) Every law that changes the 
punishment, and inflicts a greater punishment 
than the law annexed to the crime when commit- 
ted, (4) Every law that alters the jegal rules of 
evidence, and reveives less or different testimony 
than the law required at the time of the commis- 
sion of the offense, in order to convict the offend- 
er, Ali these, and similar laws, are prohibited 
by the constitution. But a law may be ex post 
facto, and still net amenabie to this constitutional 
inhibition; that is, provided it mollifiies, instead 
of aggravating, the rigor of the criminal law. 16 
Ga. 102; 4 Wall. 277; 2 Wash. C. C. 366; 8 N. O. 
473; 3 Dall. 300; 3 Story, Const. 212, 

An ex post facio law is one which renders an act 
punishable, in a manuer in which it was not pun- 
ishable when committed, Such a law may inflict 
penalties on the person, or pecuniary peualties 
whieh swell the public treasury. The legislature 
is therefore prohibited from passing a law by 
which a man’s estate, or any part of it, shall be 
seized foracrime, which was notdeclared, by soma 
previous law, to render him liable to such punish- 
ment. 6 Cranch, &7, 133. 

The plain and obvious meaning of this prohibi- 
tion is that the legislature shall not pass any law, 
after a fact done by any citizen, which shall have 
relation to that fact, so as to punish that which 
was innocent when done; or to add to the punish- 
ment of that which was criminal; or to increase 
the inalignity of a crime; or to retrench the rules 
of evidence, so as to muke conviction more easy. 
This definition of an ex post facto law is sanctioned 
by long usage. 1 Blaclkf. 196. 

The term “ex post fucto law,” in the United 


| States constitution, cannot be construed to include 


and to prohibit the enacting any law after a fact, 
nor even te prohibit the depriving a citizen of a 
vested right to property. 3 Dall. 385. 

“Ez post fucto "and “retrospective” are not con~- 
vertible terms. The latter is a term of wider sig- 
nification than the former and includes it. All ex 
post acto laws are uecessarily retrospective, but 
not € converso. A curative or confirmatory stat 


EX POST PACTO LAW 


tite Is retrospective, but not ex post facto. Con- 
stitutions of pearly all the states contain prohibi- 
tions against ex post facto laws, but only a few 
forbid retrospective legislation in specific terms. 
Black, Const. Prohib. §§ 170, 172, 222. 

Retrospective laws divesting vested rights are 
impolitic and unjust; but they are not “ex post 
faeto laws,” within the meaping of the constitu- 
tion of the United States, nor repugnant to any 
other of its provisions; and, if not repugnant to 
the state constitution, 2 court cannot pronounce 
them to be void, merely because in their judgment 
they are centrary to the priuciples of natural jus- 
tice. 2% Paine, 74. 

Every retrospective act is not necessarily an ex 
post facto law. Thai phrase embraces only such 
layys a3 impose or affect penalties or forfeitures. 
4 Wall, 172. 

Retrospective laws which do not impair the ob- 
ligation of contracts, or affect vested rights, or 
partake of the character of ex posi fucto laws, are 
not prohibited by the coustitution. 36 Barb. 447. 

Ex precedentibus et consequentibns 
optima fit interpretatio. 1 Roll. 374. The 


best interpretation is made from the ceniext. 


EX PRACOGITATA MALICIA. Of 
malice aforethought. Reg. Orig. 102. 


EX PROPRIO MOTU. Of his own ac- 
cord, 


BX PROPRIO VIGORE. By their or 
its own force. 2 Kent, Comm. 457. 


EX PROVISIONE HOMINIS. By 
the provision of man. By the limitation of 
the party, as distinguished from the disposi- 
tion of thelaw, 11 Coke, 808. 


EX PROVISIONEH MARITI. 
the provision of the husband. 


EX QUASI CONTRACTU. From 
quasi contract. Fleta, lib. 2, c. 60. 


EX RELATIONEH. Upon relation or in- 
formation. Legul] proceedings which are in- 
stituted by the attorney general (or other 
proper person) in the nameand Lehalf of the 
state, but on the information and ut the in- 
stigation of an individual who has a private 
interest in the matter, are said to be taken 
“on the relation” (ca reiatione) of such per- 
son, who is callet the “relator.” Such a 
cause is usually entitled thas: “State ew red. 
Doe 2. live.” 

In the books of reports, when acase is said 
to be reported ex relatione, it is meant that 
the reporter derives his account of it, not 
from personal knowledge, but from the rela- 
tion or narrative of some person who was 
present at the argument. 


EX RIGOR JURIS. According to the 
rigor or strictness of law; in strichoess of 
law. leita, lib 3. c. 10, € 2. 


From 


447 


EX UNO DISCES OMNES 


EX SCRIPTIS OLIM VISIS. From 
writings formeriy seen. A term used us de- 
seriptive of that kind of proof of handwriting 
where the knowledge bas been acquired by 
the witness having seen letters or other doe- 
uments professing to be the handwriting of 
the party, and baving afterwards communi- 
cated personally with the party upon the con- 
tents of those letters or documents, or hav- 
ing otherwise acted upon them by written 
answers, producing further correspondence 
or acquiescence by the party in some matter 
to which they relate, or by the witness trans- 
acting with the party some business La which 
they relate, or by any other motile of commu- 
nication between the party and the witness 
which, in the ordinary course of the trans- 
actions of lite, induces a reasonable presump- 
tion that the letters or documents were the 
hindwriting of the party. 5 Adol. & E. 730. 


EX STATUTO, According to the stat- 
ute. Fleta, lib. 5, ¢. 11, § 1. 


EX STIPULATU ACTIO. In thecivil 
law. Anaction of stipulation. An action 
given to recover marriage portions. Inst. 
4, 6, 29, 


EX TEMPORE. 
quence of time; by lapse of time. 
fols. 51, 52. Ha diuturno tempore, trom 
length of time. Id. fol. 516. 

Without preparation or premeditation. 


EX THSTAMENTO. From, by, or un- 
der a will. The opposite of 26 intestaio, 


(q- ®.) 


Ex tota materia emergat resolutio. 
The explanation should arise out of the whole 
subject-matter; the exposition of a statute 
should be made from ail its parts together. 
Wing. Max. 233. 


Ex furpi causa non oritur aetio. Out 
of a base [illegal, or immoral] consideration, 
an action does [can] not arise. 1Selw. N. 
P, 68; Broom, Max. 780, 732; Story, Ag. 
§ 195. 


Ex turpi contractu actio non oritur. 
From an immoral or iniquitous contract an 
action does not arise. A contract founded 
upon an illegal or immoral consideration can- 
not be enforced by action. 2 Kent, Comm. 
466; Dig. 2, 14, 27, 4. 


From or in conse- 
Bract. 


EX UNA PARTE, Of one part or side; 
on one side, 


Ex uno disces omnes. 
you can discern all. 


From ove thing 


EX UTRAQUE PARTE 


EX UTRAQUE PARTE. On both 
sides. Dyer, 1266. 


EX UTRISQUE PARENTIBUS CON- 


JUNCTI. Related on the side of both par- 
ents; of the whole blood. Hale, Com. Law, 
cell. 


EX VI TERMINI. From or by the 
force of the term. From the very meaning 
of the expression used, 2 Bl. Comm. 109, 
115. 


EX VISCERIBUS. From the bowels. 
From the vital part, the very essence of the 
thing. 10 Coke, 24b; 2 Metc. (Muass.) 213, 
Ex visceribus verborum, from the mere words 
and nothing else. 10 Johns. 494; 1 Story, 
Eq. Jur. § 980. 


EX VISITATIONE DEI. By the dis- 
pensation of God; by reason of physical in- 
capacity. Anciently, when a prisoner, being 
arraigned, stood silent instead of pleading, a 
jury was impaneled to inquire whether he 
obstinately stood mute or was dumb ea visi- 
tatione Det. 4 Steph. Comm. 394. 

Also by natural, as distinguished from vio- 
lent, causes. When a coroner’s inquest finds 
that the death was due to disease or other 
natural cause, it ia frequently plirased “ez | 
visttatione Det.” 


EBX VISU SCRIPTIONIS. From sight 
of the writing; {rom having seen a person 
wrile. A term employed to describe one of 
the modes of proof of handwriting. Best, 
Pres, 218. 


EBX VOLUNTATE. 
free-will or choice. 


EXACTION. The wrongful act of an of- 
ficer or other person in compelling payment 
of a fee or reward for his services, under 
color of his official authority, where no pay- 
ment is due, 

Between “extortion” and “exaction” there is 
this difference: that in the former cuse the officer 
extorts more than his due, when something is due 
te him; in the latter, he exacts what is not his 
due, when there is nothing due to him. Co. Litt. 
863, 

EXACTOR. In the civillaw. A gath- 
erer or receiver of money; a collector of 
taxes. Cod. 10, 19. 

In old English law. A collector of the 
public moneys; a tax gatherer. ‘Thus, ex- 
actor regis was the name of the king’s tax 
collector, who took up the taxes and other 
debts due the treasury. 


EXACTOR REGIS. The king's col- 
lector of taxes; also a sheriff. 


Voluntarily; from 


448 EXAMINATION OF BANKRUPT 


EXALTARE. In old English law. To 
raise; to elevate. Frequently spoken of 
water, t. ¢,, to raise the surface of a pound or 
pool, 


EXAMEN. L. Lat. Atrial. Haamen 
computi, the balance of an account. Townsh. 


Pl. 228. 


EXAMINATION. An _ investigation; 
search; interrogating. 

In trial practice. The examination of a 
witness consists of the series of questions put 
to him by a party to the action, or his coun- 
sel, for the purpose of bringing before the 
court and jury in legal form the knowledge 
which the witness has of the facts and mat- 
ters in dispute, or of prubing aud sifting hia 
evidence previously given. 

The examination of a witness by the party 
producing him is denominated the “direct ex- 
amination ;” the examination of the same wit- 
ness, upon the same matter, by the adverse 
party, the “cross-examination.” The direct 
examination must be completed before the 
cross-examination begins, unless the eourt 
otherwise direct. Code Civil Proc. Cal. 
§ 2045. 

In criminal practice. <An investigation 
by a magistrate of a person who has been 
charged with crime and arrested, or of the 


| facts and circumstances which are alleged to 


have attended the crime and to fasten sus- 
picion upon the party so charged, in order to 
ascertain whether there is sufficient ground 
to hold him to bailfor his trial by the proper 
court. 


EXAMINATION DE BENE ESSE. 


A provisional examination of a witness; 


an examination of a witness whose testimony 
is important and might otherwise be lost, 
held out of court and before the trial, with 
the proviso that the deposition so taken may 
be used on the trial in case the witness is un- 
able to attend in person at that time or can- 
not be produced. 


EXAMINATION OF A LONG AC- 
COUNT. This phrase does not mean tlie 
exumination of the account to ascertain the 
result or effect of it, but the proof by testi- 
mony of the correctness of the items com- 
posing it. 5 Daly, 63. 


EXAMINATION OF BANKRUPT. 
This is the interrogation of a bankrupt, in 
the course of proceedings in bankruptcy, 
touching the slate of bis property. This is 
authorized in the United States by Rev. st. 


r 


f 


EXAMINATION OF INVENTION 449 


§ 5086; and § 5087 authorizes the examina- 
tion of a bankrupt's wife. 


EXAMINATICN OF INVEN- 
TION. An inquiry madeat the patent-office, 
upon application for a patent, into the nov- 
elty and utility of the alieged invention, and 
as te ils interfering with any other patented 
invention. Rev. St. U. S. § 4893. 


EXAMINATION OF TITLE, Anin- 
vestigation made by or for a person who in- 
tends to purchase real estate, in the offices 
where the public records are kept, to ascer- 
tain the history and present condition of the 
title to such land, and its status with ref- 
erence to liens, incumbrances, clouds, etc, 


EXAMINED COPY. A copy of a rec- 
ord, public book, or register, and which has 
been compared with the original. 1 Campb. 
469, 


EXAMINER. InEnglishlaw. A per- 
son appointed by a court to take the exami- 
nation of witnesses in an action, Z. ¢., to take 
down the result of their interrogation by the 
parties or their counsel, either by written in- 
terrogutories or vio voce, An examiner is 
generally appointed where a witness is ina 
foreign country, or is too ill or infirm to at- 
tend before the court, and is either an officer 
of the court, or a person specially appointed 
for the purpose. Sweet. 

In New Jersey. An examiner is an officer 
appointed by the court of chancery to take 
testimony in causes depending in that court, 
His powers are similar to those of the En- 
glish examiner in chancery. 

In the patent-office. An officer in the 
patent-office charged with the duty of exam- 
ining the patentability of inventions for 
which patents are asked. 


EXAMINER IN CHANCERY, An 
officer of the court of chancery, before whom 
witnesses are examined, and their testimony 
teduced to writing, for the purpose of being 
read on the hearing of the cause. Cowell. 


EXAMINERS. Persons appointed to 
question students of law in order tu ascertain 
their qualifications before they are admitted 
to practice. 


EXANNUAL ROLL. Im old English 
practice. A roll into which (in the oid way 
of exhibiting sheriffs’ accounts) the illevia- 
ble finesand desperate debts were transcribed, 
ang which was annually read to the sheriff 
upon his accounting. to see whab might be 
gotten. Cowell. 

4M.DICT,LAW—29 


EXCEPTIO DILATORIA 


EXCAMB. InScotchlaw. Toexchange. 
6 Bell, App. Cas. 19, 22. 


EXCAMBIATOR.,. An exchanger of 
lands; a broker. Obsolete. 


EXCAMBION. In Scotch law. 
change. 1 Forb. Inst. pt. 2, p. 173. 


EXCAMBIUM. An exchange; a place 
where merchants meet to transact their busi- 
ness; also an equivalent in recompense; a 
recompense in lieu of dower ad ostium eccle- 
sia, 


BEXCELLENCY. In English law. 
The title of a viceroy, governor general, am- 
bassador, or commander in chief. 

In America. The title is sometimes 
given to the chief executive of a state or of 
the nation. 


EXCEPTANT. One who excepts; one 
who makes or files exceplions; one who ob- 
jects to a ruling, instruction, or anything 
proposed or ordered. 


HACEPTIO. In Romanlaw. An ex- 
ception. In a general sense, a judicial alle 
gation opposed by a defendant to the pisin- 
tiff's action. Calvin. 

A stop or stay to an action opposed by the 
defendant. Cowell. 

Answering to the “defense” or “plea” of 
the common Jaw. An allegation and de- 
fonse of a defendant by which the plaintiff's 
claim or complaint is defeated, either accord- 
ing to strict law or upon grounds of equity. 

In a stricter sense, the exelnsion of an ac- 
tion that lay in stricé law, on grounds of 
equity, (aclionis jure stricio competentis ob 
wyuitatem exeiusio.) Heinece. A kind of 
limitation of an action, by which it was 
shown that the action, though otherwise just, 
did not lie in the particular ease. Calvin. 
A species of defense allowed in cases where, 
though the action as brought by the plaintiff 
waa in itself just, yet il was unjust as against 
the particular party sued. Inst. 4, 13, pr. 

In modern civil law. <A plea by which 
the defendant admits the cause of action, but 
alleges new facts which, provided Lhey be 
true, totally or partially answer the allega- 
tions put forward on the other side; thus dis- 
tinguished from a mere traverse of the plain- 
tiff’s averments. Tomkins & J. Mod. Rom. 
Law, 90. In this use, the term corresponds 
to the common-law plea in confession and 
avoidance. 


EXCEPTEIO DILATORIA. 
law. 


Ex 


In the civil 
A dilatory exception; called also “iem- 


H 


EXCEPTIO DOLI MALI 


poralds,” (temporary;) one which defeated 
the action for a time, (que ad tempus nocet,) 
and created delay, (et temports dilationem 
tribuit;) such as an agreement not to sue 
within a certain time, as five years. Inst. 
4, 13,10. See Dig, 44, 1, 3. 


EXCEPTIO DOLI MALI. In thecivil 
law. An exception or plea of fraud. Inst. 
4, 13, 1, 9; Bract. fol. 1008. 


Exceptio ejus rei cujus petitur disso- 
Iutio nulla est. A plea of that matter the 
dissolution of which is sought [by the ac- 
tion] is null, [or of no effect.] Jenk. Cent. 
37, case 71. 


Exceptio falsi omnium ultima. 
denying a fact is the last of all. 


EXCEPTIO IN FACTUM. Inthe civil 
law. An exception on the fact. An excep- 
tion or plea founded on the peculiar circum- 
stances of the case. Inst. 4, 13, 1. 


EXCEPTIO JURISJURANDI. Inthe 
civil law. An exception of oath; an excep- 
tion or plea that the matter had been sworn 
to. Inst. 4, 13, 4. This kind of excep- 
tion was allowed where a debtor, at the in- 
stance of hig creditor, (creditore deferente,) 
had sworn that nothing was due the latter, 
and had notwithstanding been sued by him. 
Id. 


EXCEPTIO METUS. Inthe civil law. 
An exception or plea of fear or compulsion. 
Inst. 4, 18, 1, 9; Bract. fol, 1006. Answer- 
ing to the modern plea of duress. 


A plea 


Exceptio nulla est versus actionem 
que exceptionem perimit. There is[can 
be] no plea against an action which destroys 
[the matter of] the plea. Jenk. Cent. 106, 
case 2. 


EXCEPTIO PACTI CONVENTI. In 
the civillaw. An exception of compact; an 
exception or plea that the plaintiff had agreed 
not to sue. Inst. 4, 13, 3. 


EXCEPTIO PECUNIA: NON NU- 
MERATA. An exception or plea of money 
not paid; a defense which might be set up 
by a party who was sued on a promise to re- 
pay money which he had never received. 
Inst. 4, 18, 2. 


EXCEPTIO PEREMPTORIA. Inthe 
civil law. A peremptory exception; called 
also “perpetua,” (perpetual;) one which for- 
evar destroyed the subject-matter or ground 
of the action, (que semper rem de qua agitur 
pevimii,) such as the ezcepiio deli mali, the 


450 


EXCEPTION 


exceptio metus, etc. 
44, 1, 3. 

In common law. A peremptory plea; s 
pleainbar. Bract. fols. 240, 3995. 


Exceptio probat regulam. The excep- 
tion proves the rule. 11 Coke, 41; 3 Term, 
722. Sometimes quoted with the addition 
“de rebus non exeeptis,” (“so far as con- 
cerns the matters not excepted.”) 


Inst. 4, 13,9. See Dig. 


Exceptio que firmat legem, exponit 
legem. An exception which confirms the 
law explains the law. 2 Bulst. 189. 


EHXCEPTIO REI JUDICATM. Inthe 
civil law. An exception or plea of matter 
adjudged; a plea that the subject-matter of 
the action had been determined in a previous 
action. Inst. 4, 13, 5. 

This term is adopted by Bracton, and is 
constantly used in modern law to denotea 
defense foun:led upon a previous adjudica- 
tion of the same matter. Bract. fols. 1008, 
177; 2 Kent, Comm. 120. <A plea of a for- 
mer recovery or judgment. 


EXCEPTIO REI VENDITA ET 
TRADITA. In the civil law. An excep- 
tion or plea of the sale and delivery of the 
thing. This exception presumes that there 
was a valid sale and a proper tradition; but 
though, in consequence of the rule that no 
one can transfer to another a greater right 
than he himself has, no property was trans- 
ferred, yet because of some particular circum- 
stance the real owner is estopped from con- 
testing it. Mackeld. Rom. Law, § 299. 


Exceptio semper ultimo ponenda est. 
An exception should always be put last. 9 
Coke, 53. 


EXCEPTIO TEMPORIS. In the civil 
law. An exception or plea analogous to 
that of the statute of limitations in our law; 
viz., that the time prescribed by law for 


bringing such actions has expired. Mackeld. 
Rom. Law, § 218. 
EXCEPTION. In practice. <A formal 


objection to the action of the court, during 
the trial of a cause, in refusing a request or 
overruling an objection; implying that the 


; party exeepting does not acquiesce in the de- 


cision of the court, but will seek to procure 


| its reversal, and that he means to save the 


benefit of his request or objection in some 
future proceeding. 

Tt is also somewhat used to signify other 
objections in the course of a suit; for ex- 
ample, exception to bail is a formalobjection 


EXCEPTION 


that special bail offered by defendant are in- 
sufficient. 1 Tidd, Pr. 255. 

An exception is an objection upon a matter 
of law toa decision marie, either before or ait- 
er judgment, by a court, tribunal, judge, or 
other judicial ollicer, in an action or proceed- 


ing. The exception must be taken at the | 


time the decision is made. 
Cal, $646; 32 Cal. 307. 


In admiralty and equity practice. An 
exception is a formal allegation tendered by 
a party that some previous pleading or pro- 
ceeding taken by the adverse party is insuf- 
ficient. 

In statutory law. An exception in a 
statute is a clause designed to reserve or ex- 
empt some individuals from the general class 


Code Civil Proc. 


- of persons or things to which the language of 


the act in general attaches. 

An exception differs from an explanation, which, 
by the use of a videlicet, proviso, ete., is allowed 
only to explain doubtful clauses precedent, or to 
separate and distribute generals into particulars. 
$ Picks. 272. 

In contracts. A clause in a deed or other 
conveyance by which the grantor excepts 
something out of that which he granted be- 
fore by the deed. 

The distinction between an exception and ares- 
ervation is that an ercention is always of part of 
the thing granted, and of a thing in csse; a reser- 
vation is always of a thing not in esse, but newly 
created or reserved out of the land or tenement 
demised. Co. Litt. 4%; 4 Kent, Comm.468. It has 
been also said that there is a diversity between an 
exception and a saving, for an exception exempts 
clearly, but a saving goes to the matiers touched, 
anddoes not exempt. Plowd. 361. 

In the civil law. An exceptio or plea. 
Used in this sense in Louisiana. 

Declinatory caceptions are such dilatory 
exceptions as merely decline the jurisdiction 
of the judge before whom the action is 
brought. Code Proc. La. $84. 

Dilatory eaeceptions are such as do not 
tend to defeat the action, but only to retard 
its progress, 

Peremptory exceptions are those which 
tend to the dismissal of the action. 


HXCEPTION TO GAIL, <Anobjection 
to the special bail putin by the defendant to an 
action at law made by the plaintiff on grounds 
of the insufficiency ot the bail. 1 Tidd, Pr. 
205. 


EXCEPTIS EXCIPIENDIS. 
hecessary exceptions. 


With all 


EXCEPTOR. In old English law. A 
party who entered an exception or plea. 


451 


EXCHANGE, BILL OF 


EXCERPTA, or EXCERPTS. Extracts. 


EXCESS. When a defendant pleaded to 
an action of assault that the plaintiff tres- 
passed on his land, and he would not depart 
when ordered, whereupon he, molliter manus 
imposuit, gently laid hands on him, the rep- 
lication of excess was to the effect that the 
defendant used more force than necessary. 
Wharton. 


EXCESSIVE. In order that bail required 
(or punishment inflicted) should be described 
as “excessive,” it nnust be, per se, unreason- 
ably great and clearly disproportionate to the 
oifense involved, or the peculiar circumstan- 
ces appearing must show ib to be so in the 
particular case. 44 Cal. 558; 53 Cal. 410; 
39 Conn. 484, 


EXCESSIVE DAMAGES. Damages 
awarded by a jury which are grossly in ex- 
cess of the amount warranted by law on the 
facts and circumstances of the case; unrea- 
sonable or outrageous damages. A verdict 
giving excessive damages is ground for a 
new trial. 


Excessivum in jure reprobatur. Ex- 
cessus in re qualibet jure reprobatur 
communi. Oo. Litt. 44 Excess in law is 
reprehended, Excess in anything is repre- 
hended at common law. 


EXCHANGE. In conveyancing. A 
mutual grant of equal interests, (in lands or 
tenements,) the one in consideration of the 
other. 2 Bl. Comm. 323. In the United 
States, if appears, exchange does not differ 
from bargain and gale. See 2 Bouy. Inst. 
2050, 


In commercial law. A negotiation by 
which one person transfers to another funds 
whieh he has tna certain place, either ata 
price agreed upon or which is fixed by com- 
mercial usage. 

The profit which arises from a maritime 
loan, when such profit is a percentage on the 
money lent, considering it in the light of 
money lent in one place to be returned in 
another, with a difference in amount in the 


, sum borrowed and that paid. arising from 


| writers. 


the dilference of time and place. The term 
is commonly used in this sense by French 
Hall, Emerig. Mar. Loans, 56x, 
A publie place where merchants, brokers, 
factors, ete., meet to transact their business. 


EXCHANGE, BILL OF. See BILL or mi 
EXCHANGE. 


EXCHANGE OF GOODS 4 


EXCHANGE OF GOODS. A commu- 
tution, transmutation, or transfer of goods 
for other goods, as distinguished from sale, 
which isa transfer of goods for money. 2 BI. 
Camm. 446; 2 Steph. Comm. 120. 

Exchange is a contract by which the 
parties mutually give, or agree to give, one 
thing for another, neither thing, or both 
things, being money only. Civil Code Cal. 
§ 1804; Civil Code Dak. § 1029; Civil Code 
La. art. 2600. 


The distinction between a sale and exchange of 
property is rather ons of shadow than of substance. 
In both cases the title to property is absolutely 
transferred; and the sama rules of law are appli- 
eable tothe transaction, whether the consideration 
of the contract is money or by way of barter. It 
can make no essential difference in the rights and 
obligations of parties that goods and merchandise 
are transferred and paid for by other goods and 
merchandise instead of by money, which is but the 
representative of value or property. 14 Gray, 367. 


EXCHANGE OF LIVINGS. In ec- 
clesiastical Jaw. ‘This is effected by resign- 
ing them into the bishop's hands, and each 
party being inducted into the other’s bene- 
fice, If either die before both are inducted, 
the exchange is void. 


EXCHEQUER. That department of the 
English government which has chargeof the 
collection of the national revenue; the treas- 
ury department. 


It is said to hava been s0 named from the chea- 
uered cloth, resembling a chess-voard, which an- 
ciently covered the table there, and on which, 
whon certain of the king's accounts were made up, 
the sums were marked and scored with counters, 
8 Bl, Comm. 44. 


EXCHEQUER BILLS. Bills of credit 
issued in England by authority of parlia- 
ment. Brande, Instruments issued at the 
exchequer, under the authority, for the most 


part, of acts of parliament passed for the pur- | 


pose, and containing an engagement on the 
part of the government for repayment of the 
principal sums advanced with interest. 2 
Steph. Comm. 556. 


EXCHEQUER CHAMBER, COURT 
OF. In English law. <A tribunal of error 
and appeal. 

First, it existed in former times as a court 
of mere debate, such causes from the other 
courts being sometimes adjourned into it as 
fhe judges, upon arcument, found to be of 
great weiyht and difliculty, before any judg- 
mmént was given “pon them in the court be- 
low, It then consisted of all the judges of 
the three superior courts of common law, 
and at times the lord chancellor also. 


5 


2 EXCISE 


Second, it existed asa court of error, where 
the judgments of each of the superior courts 
of common law, in all actions whatever, were 
subject to revision by the judges of the oth- 
er two sitting collectively. The composition 
of this court consequently adinitied of three 
different combinaiions, consisting of any two 
of the courts below which were not parties 
to the judgment appealed against. There 
was no siven number required to constitute 
the exchequer chamber, but the court never 
consisted of less than five. One counsel only 
was heard on cach side. Error lay from this 
court to the house of lords. ‘Tis court is 
abolished, and its jurisdiction in appeals ( pro- 
eeedings in error in civil cases and bills of 
exceptions being abolished) is transferred to 
the court of appeal. Jud. Act 1875, § 1d. 
Wharton. 


EXCHEQUER, COURT OF. See 
CouRT OF EXOHEQUER. 
EXCHEQUER DIVISION. A division 


of the English high court of justice, to which 
the special business of the courl of exchequer 
was specially assigned by section 34 of the 
judicature act of 1878. Merged in the queen’a 
bench division from and after 1881, by order 
in council under section 31 of that act. 
Wharton. 


EXCISH, An inland imposition, paid 
sometimes upon the consumption of the com- 
inodity, and frequently upon the retail sale. 
1 Bi. Comm. 318; Story, Const. § 950. 


The words “tax” and “excise,” aljhough often 
uscd as synonymous, are to be considered as hay- 
ing entirely distinct and separate significations, 
under Const. Mass. c. 1, § 1, art.4. The former is 
a charge apportioned either among the whale peo- 
pie of the state or those. residing within certain 
districts, municipalities, orsections. Itis required 
to be imposed, so that, if levied for the public 
charges of government, it shall be slared accord- 
ing to the estate, real and personal, which each 
person may pessess; or, if raised to defray tha 
cost of some loval ioprovoment of apublic nature, 
it shail be borne by thusc whe will receive some 
special and peculiar benefit or advantage which 
an expenditure of money for a public object may 
cause to these on whom the tax is assessed. An 
excise, on the other hand, is of a diferent charac 
ter. It is hased on no rule of apportionment or 
equality whatever, It is a fixed, absolute, and 
direct charge laid ou merchandise, products, or 
commodities, without any regard to the amount of 
property belonging to those on whom it may fall, 
or to any supposed relation between money ex- 
pended for a public object and a special benefit oc- 
casioned to those by whom the charge is to be 
paid. 11 Allen, 268, 


In English law. The name given to the 
duties or taxes laid on certain articles pro- 
duced and consumed at home, among which 


is 


EXCISE LAW 


453 


EXCUSATOR 


spirits have always been the most important; ity to the ecclesiastical jurisdiction. Fitzh. 


but, exclusive of these, the duties on the 
licenses of auctioneers, brewers, etc., and on 
the licenses to keep dogs, kill game, etc., are 
included in the excise duties. Wharton. 


EXCISH LAW. A law imposing excise 
duties on specified commodities, and provid- 
ing for the collection of revenue therefrom. 

In a more restricted and more popular 
sense, a law regulating, restricting, or tax- 
ing the manufacture or sale of intoxicating 
liquors. 


EXCLUSA. In old Englishlaw. A 
sluice to carry off water; the payment to the 
lord for the benefit of such a sluice. Cowell. 


EXCLUSIVE. Shutting out; debarring 
from interference or participation; vested in 
one person alone. An exclusive right is one 
which only the grantce thereof can exercise, 
and from which all others are prohibited or 
shut out. 

A statute does not grant an “exclusive” 
privilege or franchise, unless ié shuts ont or 
excludes others from enjoying a similar priv- 
ilege or franchise. 98 N. Y. 151. 


EXCOMMENGEMENT. Excommuni- 
cation, (g.0.) Co, Litt. 1é4e. 


EXCOMMUNICATION. A sentence 
of censure pronounced by one of the spiritual 
courts for offenses falling under ecclesias- 
tieal cognizance, It is described in the books 
as twofold: (1} The fesser excommunieation, 
which is an ecclesiastical cansure, excluding 
the party from the sacraments; (2) the great- 
er, which excludes him from the company of 
wil Christians. Formerly, too, an excommu- 
Hicated man was under various civil disabil- 
ities. Ile could not serve upon juries, or be 


a witness in anycourt; neither could he bring | 


an action fo recover lands or money due to 
him. ‘These penalties are abolished by St. 43 
Geo. III. c. 127. dSteph. Comm, 721. 


EXCOMMUNICATO CAPIENDO. In 
ecclesiastical law, A writ issuing out of 
ecliancery, founded on a bishop's certificate 
that the defendant had been excommunicated, 
and requiring the sheriff to arrest and im- 
prison him, returnable to the king’s bench. 
4 Bl. Comm. 415; Baec."Abr. “Excommuni- 
cation,” E. 


EXCOMMUNICATO DELIBERAN- 
DO. A writ to the sheriff for delivery ofan 
excommunicated person out of prisen, upon 
eertificate from the ordinary of his conform- 


Nat. Brey. 63. 


Exrcommunicato interdicitur omnis 
actus lepitimus, ita quod agere non po- 
test, nee aliquem convenire, licet ipss 
ab aliis possit conveniri. Co. Litt. 135. 
Every legal act is forbiiden an excormmuni- 
cated person, so that he cannot act, nor sue 
any person, but he may be sued by others. 


EXCCOMMUMNICATO RECAPIENDO. 
A writ commanding that persons exeommu- 
nicated, who for their obstinacy had beer 
committed te prison, buf were unlawfully 
seb free before they had given caution to obey 
the authority of the church, should be sought 
after, retaken, and imprisoned again. Reg. 
Orig. 67. 


EXCULPATION, LETTERS OF, In 
Scoteh law. A warrant granted at the 
suit of a prisoner for citing witnesses in his 
own defense. 


EXCUSABLH HOMICIDE. In crimi- 
nal law. ‘The killing of a human being, 
either by misadventure or in self-defense. 
The name ilself imports some fault, arror, or 
omission, so trivial, however, that the law 


| excuses it from the guilt of felony, though in 


strictness it juilges it deserving of some little 
degree of punishment, 4 Bl, Comm. 182. 

itis of two sorts,—either per tu fortunium, 
by misadventure, or se defendentdo, upon a 
sudden affray. Homicide per infortunium 
is where a man, doing a lawful act, without 
any intention of hurt, unfortunately kills 
another; but, if death ensue from any unlaw- 
ful act, the offense is manslaughter, and not 
misadventure, Homicide se dzfendende is 
where a man kills another upon a sudden af- 
fray, merely in his own defense, or in defense 
of his wife, child, parent, or servant, and not 
irom any vindictive feeling. 4 Bl. Comm, 
182. 


Excusat aut extenuat delictum in cap- 
italibus quod non operatur idem in ci- 
vilibus. Bac. Max.r.15. That may exciusa 
or palliate a wrongful act in capital cases 
which would not have the same effect in civil 
injuries. See Broom, Max. 824. 


EXCUSATIOC. Inthecivillaw. Anex- 
cuse orreason which exempts from someduty 
or obligation. 


EXCUSATOR. In English law. An i 


excuser, 


i 


EXCUSATOR 


In old German law. A defendant; he 
who utterly denies the plaintiff’s claim. Du 
Cane. 


Exeusatur quis quod clameum non 
opposuerit, ut si toto tempore litigii 
fuit ultra mara quacungue occasione. 
Co. Litt. 260. He is excused who does not 
bring his claim, if, during the whole period 
in which it ought to have. been brought, he 
has been beyond sea for any reason. 


EXCUSE. A reason alleged for doing or 
not duing a thing. Worcester. 

A matter alleged as a reason for relief or 
exemption from some duty or obligation. 


EXCUSS. To seize and detain by law. 


EXCUSSIO. In the civil law. <A dil- 
igent prosecution ofa remedy against a debt- 
or; the exhausting of a remedy against a 
principal debtor, before resorting to his sure- 
ties. Translated “discussion,” (g. 0.) 

In old English law. Rescue or rescous. 
Spelman. 


EXEAT. A permission which a bishop 
granta toa priest to go out of his diocese; 
also leave to go out generally. 


EXECUTS. To finish, accomplish, make 
cowplete, fulfill. To perform; obey the in- 
junctions of. 

To make; as to execute a deed, which in- 
eludes signing, sealing, and delivery. 

To perform; carry out according to its 
terms; as to execute a contract. 

To fulfill the purpose of; to obey; fo par- 
form the commands of; as to execute a writ. 

To fulfill the sentence of the law upon a 
person judicially condemned to suffer death. 

A statute is said to eveeute a use where it 
transmutes the equitable interest of the cestut 
qué use into alegal estate of the same nature, 
and makes him tenant of the land accordingly, 
in lieu of the feoffee to uses or trustee, whose 
estate, on the other hand, is at the same mo- 
ment annihilated. 1 Steph. Comm. 359, 


EXECUTED. Completed; earried into 
full effect; already done or performed; taking 
effect immediately; now in existence or in 
possession; conveying an immediate right or 
possession. The opposite of executury. 


EXECUTED CONSIDERATION. A 
consideration which is wholly past. 1 Pars. 
Cont. 391. An act done or value given be- 
fore the making of the agreement. 


EXECUTED CONTRACT. One where 
nothing remains to be done by either party, 


454 


EXECUTED WRIT 


and where the transaction is completed at the 
moment thatthe agreement is made, as where 
an article is sold and delivered, and payment 
therefor is made on the spot. A contract is 
said to be exceutory where some future act is 
to be done, as where an agreement is made 
to build a house in six months, or te do an 
act on or before some future day, or to lend 
money upon a certain interest, payable ata 
future time, Story, Cont. 8. 


EXECUTED ESTATE. An estate 
whereby a present interest passes to and ree 
sides in the tenant, not dependent upon any 
Subsequent circumstanee or contingency. 
They are more commonly called “estates in 
possession.” 2 Bl. Comm. 162. 

An estate where there is vested in the 
grantee a present and immediate right of 
present or future enjoyment. 


EXECUTED FINE. ‘Tho fine sur cog- 
nizance de droit, come ceo que il ad de son 
done; or a fine upon acknowledgment of the 
right of the cognizee, as that which he has of 
the gift of the cognizor. Abolished by 3 & 
4 Wm. IV.c. 74. 


EXECUTED REMAINDER. Are 
mainder which vests a present interest in the 
tenant, though the enjoyment is postponed 
to the future. 2 Bl. Comm. 168; Fearne, 
Rem. 31. 


EXECUTED TRUST. A trust of which 
the scheme has in the outset been completely 
declared. Adams, Eq. 151. <A trustin which 
the estates and interest in the subject-matter 
of the trust are completely limited anu defined 
by the instrument creating the trust, and re- 
quire no further instruments to complete 
them. Bisp. Eq. 20. 

As all trusis are exccutory in this sense, that 
the trustee is bound to dispose of the estate ac- 
cording to the tenure of his trust, whether active 
or passive, it would be more accurate and precisa 
to substitute the terms, “perfect” and “imperfect® 
for “executed” and “executory” trusts. 1 Hayes, 
Conv. 85. 


EXECUTED USE. The first use ina 
conyeyanee upon which the statute of uses op- 
erates by bringing the possession to it, the com- 
bination of which, @. e., the use and the pos- 
session, form the legal estate, and thus the 
statute is said to executethe use. Wharton, 


BXECUTED WRIT. Im practice. A 
writ carried into effect by the oflicer to whom 
itis directed. The term “executed,” applied 
to a writ, has been held to mean “used.” 
Amb. 61. 


EXECUTIO 


EXECUTIO, Lat. The doing or follow- 
{ng up of a thing; the doing a thing complete- 
ly or thoroughly; management or adminis. 
tration. 

In old practices. 
process in an action. 


Execution; the final 


EXECUTIO BONORUM. Inold English | 


law. Management or administration of soods. 
Ad ecelesiam et ad amicos pertinebit executio 
bonorum, the execution of the goods shall be- 
long to the chureh and to the friends of the 
deceased. Bract. fol. 606. 


Hixecutio est executio juris secundum 
judicium. 5 Inst. 212. Execution is the 
execution of the law according to the judg- 
ment. 


Executio est finis et fructus legis. 
Co. Litt. 289. Execution is the end and fruit 
of the law. 


Executio juris non habet injuriam. 
2 Roll, 301. The execution of law does no 
injury. 

EXECUTION. The completion, fulfill- 
ment, or perfecting of anything, or carrying 
it into operation and effect. The signing, 
sealing, and delivery ofadeed. The signing 
and publication of a will. The performance 
of a contract according to its terms. 

In practice. The last stage of a suit, 
whereby possession is obtained of anything 
recovered. Itis styled “finul process,” and 
consists in putting the sentence of the law 
inforee. 3 Bl. Comin. 412. The carrying 
into effect of the sentence or judgment of a 
court, 

Also the name of a writ issued to a sheriff, 
constable, or marshal, authorizing and re- 


quiring him to execule the judgment of the | 


court. 

At common law, executions are said to be 
either final or guousque; the former, where 
complete satisfaction of the debt is intended 
to be procured by this process; the latter, 
where the execution is only a means'to an 
end, as where the defendant is arrested 
on ¢a, 8a. 

In criminal law. The carrying into ef- 
fect the sentence of the law by the infliction 
of capital punishment. 4 Bl. Comm. 403; 
4Steph. Comm. 470. 


EXECUTION OF DECREE. Some- 
times from the neglect of parties, or some 
other cause, it became impossible to carry a 
decree into execution without the further de- 


455 


EXECUTIVE 


cree of the court upon a bill filed for that 
purpose. This happened generally in cases 
where, parties having neglected to proceed 
upon the decree, their rights under it became 
so embarrassed by a variety of subsequent 
events that it was necessary to have the de- 
cree of the court to settle and ascertain them, 
Such a bill might also be brought to carry in- 
to execution the judgment of an inferior 
eourt of equity, if the jurisdiction of that 
court was not equal to the purpose; agin the 
case of a decree in Wales, which the de- 
fendant avoided by fleeing into England. 
This species of bill was generally partly an 
original bill, and partly a bill in the nature of 
an original bill, though not strictly original. 
Story, Eq. Pl. 342; Daniell, Ch. Pr. 1429. 


EXECUTION OF DEEDS. The sign- 
ing, sealing, and delivery of them by the 
parties, as their own acts and deeds, in the 
presence of witnesses. 


EXECUTION PAREE. In French law. 
Aright founded on an act passed before a 
notary, by which the ereditor may immedi- 
ately, without citation or summons, seize and 
cause to be sold the property of his debtor, 
out of the proceeds of which to receive his 
payment. It imports a confession of judg- 
ment, and is not unlike a warrant of attor- 
ney. Code Proc. La. art. 732; 6 Toullier, 
no. 208; 7? Toullier, no. 99. 


EXECUTIONE FACIENDA. A writ 
commanding execution of a judgment. Ob- 
solete. Cowell. 


EXECUTIONE FACIENDA IN 
WITHERNAMIUM. A writ that lay for 
taking cattle of one who has conveyed the 
eattle of another out of the county, so that 


tbe sheriff cannot replevy them. Reg. Orig. 
82. 
EXECUTIONE JUDICII. A writ di- 


rected to the judge of an inferior court to do 
execution upon a judgment therein, or to re- 
turn some reasonable cause whercfore le de- 
lays the execution. Fitzh. Nat. Brev. 20. 


EXECUTION®R. The name given to 
him who puts criminals to death, according 
to their sentence; a hangman. 


EXECUTIVE, As distinguished from 
the legislative and judicial departments of 
government, the executive department is that 
which is charged with the detail of carrying 
the laws into effect and securing their due 
observance. The word “executive” is also 


iy 


EXECUTIVE 


ascd as an impersonal designation of the 
chief executive officer of a state or nation. 


Executive officer means an officer in whom re- 
sides the power to execute the laws. 4 Cal. 127, 
146. 


EXECUTIVE ADMINISTRATION, 
or MINISTRY, A political term in Eng- 
land, applicable te the higher and responsible 
class of public officials by whom the chief 
departments of the government of the king- 
dom are administered. The number of these 
amounts to fifty or sixty persons. Their ten- 
ure of office depends on the confidence of a 
majority of the house of commons, and they 
are supposed to be agreed on all matters of 
general policy except such as are specilically 
left open questions. Cab. Lawy. 


EXECUTOR. <A person appointed by a 
testator to carry out the directions and re- 
quests in his will, and to dispuse of the prop- 
erty according to his testamentary provisions 
after his decease. 

One to whom another man commits by his last 
will the exccution of that will and testament. 2 
Bl. Comm. 603. 

A person to whom a testator by his will commits 
the evecufion, or putting in force, of that instru- 
ment and its codicils. Fonbl. 307. 

Executors are classified according to the 
following several methods: 

They are either general or special. The 
former term denotes an executor who is to 
have charge of the whole estate, wherever 
found, and administer it to a final settlement; 
while a special executor is only empowered 
by the will to take charge of a limited por- | 
tion of the estate, or such part a9 may lie in 
one place, or to carry on the administration 
only to a prescribed point. 

They are either instiiuted or substituted. 
An instittted executor is one who is appoint- 
ed by the testator without any condition; 
while a substituted executor is one named to 
fill the office in casé the person first nominat- 
ed should refuse to act. 

In the phraseology of ecclesiastical law, 
they are of the following kinds: 

Hwecutor & lege constitutus, an executor 
appointed by law; the ordinary of the dio- | 


45 


cese. 

Exceutor ab episcopo constitutus, or ex- 
ecutor dativus, an executor appointed by the 
bishop; an administrator to an intestate. 

Eaecutor & testatore constitutus, an ex- 
ecutor appointed by a tes.ator. Otherwise 
termed “executor testamentarius;” a testa- | 
mentary executor. 

An executor to the tenor is one who, though 
not directly constituted exceutor by the will, | 


6 EXECUTORY DEVISE 
is therein charged with duties in relation ta 
the estate which can only be performed by 
the executor. 

In the civil law. A ministerial officer 
who executed or carried into effect the judg- 
ment or sentence in a cause. Calvin, 


EXECUTOR DE SON TORT. LExece- 
utor of his own wrong. A person who as- 
sumes to act as executor of an estate without 
any lawfal warrant or authority, but who, 
by his intermeddling, makes himself liable as 
an executor to a certain extent. 


If a stranger takes upon him to act as executor 
without uny just authority, (as by intermeddling 
with the goods of the deceased, and many other 
transactions,) he is culled in law an “executor of 
his own wrong,” de son tort. 2 Bl. Comm. 507. 


EXECUTOR LUCRATUS. An execu- 
tor who has assets of his testator who in his 
life-time made himself liable by a wrongful 
interference with the property of another. 6 
Jur. (N. 8.) 543. 


EXECUTORY. That which is yet to be 
executed or performed; that which remains 
to be carried into operation or effeet; incom- 
plete; depending upon a future performance 
or event. The opposite of ewecuted, 


EXECUTORY BEQUEST. 
QUEST. 


EXECUTORY CONSIDERATION, A 
consideration which is to be performed after 
the contract for which it is a consideration is 
made. 


EXECUTORY CONTRACT, <A con- 
tract which is to be executed at some future 
time, and which conveys only a chose in ac- 
tien. 2 Bl. Conim. 443; 2 Kent, Comm. 
511, 512, note. See Execurep Contract. 


EXECUTORY DEVISE. Ina general 
sense, & devise of a future interest in lands, 
not to take effect a6 the testator’s death, but 
limited to arise and vest upon some future 
contingency. 1 Fearne, Rem. 352. A dis- 
position of lands by will, by which no estate 
vests’ at the death of the devisor, but only on 
some future contingency. 2 Bl. Comm. 172. 

In a stricter sense, a limitation by will of 
a future contingent interest in lands, econ- 
trary to the rules of the common law. 4 
Kent, Comm. 263; 1 Steph. Comm. 564. A 
limitation by will of a future estate or inter- 
est in Jand, which cannot, consistently with 
the rules of law, take effect as a remainder. 
2 Pow. Dey. (by Jarman, ) 237, 

By the executory devise no estate vests at the 
death of the deyisor or testator, but ouly on the 


See Br- 


EXECUTORY ESTATE 


@ contingency. 
last will and testament which is supposed to be 
e by one tnops consilii. When the limitation 
by devise is such that the future interest falls 
within the rules of contingent remainders, itis a 
‘contingent remainder, and not an executory de- 
Vise. 2Bl, Comm. 173; 4 Kent, 257; 3 Term, 763. 


EXECUTORY ESTATE. An estate 
or interest in lands, the vesting or enjoyment 
of which depends upon some future contin- 
gency. Such estate may be an evecutory de- 
vise, or an excecutory remainder, which is the 
gine as a contingent remainder, because no 
present interest passes. 


EXECUTORY FINES. These are the 
fines sur coynizance de droit tanfuim,; sur 
conecssit; and sur done, grant et render. 
Abolished by 3 & 4 Wm. IV. c. 74. 


EXECUTORY INTERESTS. A gen- 
eral term, comprising all future estates and 
{nterests in land or personality, other than re- 
versions and remainders, 


EXECUTORY LIMITATION. A lim- 


itation of a future interest by deed or will; | 


if by will, it is also culled an “executory de- 
vise.” 


EXECUTORY PROCESS. A process 
which can be resorted to in the following 
cases, namely: (1) When the right of the 
¢ereditor arises from an act importing confes- 
sion of judgment, and which contains a priv- 
flege or mortgage in his favor; (2) when the 
eredifor demands the execution of a judgment 
which has been rendered by a tribunal dif- 
ferent from that within whose jurisdiction 
the execution is sought. Code Prac. La. art. 
732. 


EXECUTORY TRUST. One whichre- 
quires the execution of some further instru- 
ment, or the dving of some further act, on 
the part of the ereator of the trust or of the 
trustee, towards its complete creation or full 
effect. An erected trust is one fully created 
and of immediate effect. These terms do not 
relate to the execution of the trust as regards 
the beneficiary. 


EXECUTORY USES. Thesearespring- 
ing uses, which confera legal title answering 
to an executory devise; as when a limitation 
to the use of A. in fee is defeasible by a lim- 
itation to the use of B., to arise ata future 
period, or on a given event. 


EXEHCUTRESS. A female executor. 
Hardy, 165, 473. See Execurrix. 


It is only an indulgence to | 


457 


EXEMPTION 


EXECUTRIX. A woman who has beew 
appointed by will to execute such will or tes- 
tament. 


EXECUTRY. In Scotch law. The 
movable estate of a person dying, which 
goes to his nearest of kin. So called as fall- 
ing under the distribution of an executor. 
Bell. 


Exempla illustrant non restringunt 
legem. Co. Litt. 240. Examples illustrate, 
but do not restrain, the law. 


EXEMPLARY DAMAGES. Damages 
on a punitive scale, given in respect of tur- 
tious acts, committed through malice or other 
circumstances of aggravation; damages de- 
signed not only a3 a compensation to the in- 
jured party, but also as a punishment to the 
wrong-doer for his violence, oppression, mal- 
ice, or fraud. 


EXEMPLI GRATIA. 
pose of example, or for instance. 
breviated “ea. gr.” or “e. g.” 


EXEMPLIFICATION. An offi- 
cial transcript of a document from public 
records, made in form to be used as evidence, 
and authenticated as a true copy. 


EXEMPLIFICATIONE. A writ grant- 
ed for the exemplification or transcript of an 
original record. Reg. Orig. 290. 


EXEMPLUM. In the civil law. Copy; 
a written authorized copy, This word is also 
used in the modern sense of “example, ”’—ad 
exempluin constituti singulares non trahi, 
exceptional things must not be taken for ex- 
amples. Calvin. 


EXEMPT, v. To relieve, excuse, or set 
free from a duty or service imposed upon the 
general class to which the individual exempt- 
ed belongs; as to exempt from militia sery- 
ice. See 1 St. at Large, 272. 

To relieve certain classes of property from 
liability to sale on execution. 


For the pur- 
Often ab- 


EXEMPT, n. One who is free from lia- 
bility to military service; as distinguished 
from a de/ail, who is one belonging to the 
army, but detached or set apart for the time 
to some particular duty or service, and liable, 
at any time, to be recalled to his place in the 
ranks. 39 Ala. 879. 


EXEMPTION. Freedom from a general 
duty or service; immunity from a general 
burden, tax, or charze. 

A privilege allowed by law te a judgment 


EXEMPTION LAWS 


debtor, by which he may hold property toa 
certain amount, or certain classes of property, 
free from all liability to levy and sale on exe- 
eution or attachment. 


EXEMPTION LAWS. Laws which 
provide that a certain amount or proportion 
of a debtor’s property shall be exempt from 
execution. : 


HXAEMPTION, WORDS OF. It is a 
maxim of law that words of exemption are 


458 


not to be construed to import any liability; | 


the maxim expressio unius exclusio alterius, 
or iis converse, exclusio unius tielusio 
alterius, not applying to such a case. For 
example, an exemption of the crown from 
the bankruptcy act 1869, in onespecitied par- 
ticular, would not inferentially subject the 
crown to that act in any other particular. 
Brown. 


EXEMPTS. Persons who are not bound 
by law, but excused from the performance of 
duties imposed upon others. 


EXENNIUM. In old English law. A 
gift; a mew year’s gift, Cowell. 


EXEQUATUR. Lat. Let it be exe- 
euted, In French practice, this term is sub- 
serihed by judicial authority upon a tran- 
script of a judginent from a foreign country, 
or from another part of France, and author- 
izes the execution of the judgment within 
the jurisdiction where it is so indorsed, 

in international law. A certificate Is- 
sued by the foreign department of a state to 
n consul or commercial agent of another 
state, recognizing his official character, and 
authorizing him to fulfill his duties, 


RXERCISE. To make use of. Thus, to 
exercise a right or power is to do something 
which it enables the holder to do. 


EXERCITALIS. 
Spelman. 


EXBRCITOR NAVIS. The temporary 
owner or charterer of a ship. 


A soldier; vassal. 


EXERCITORIA ACTIO. In the ciyil 
law <Anaction which lay against the em- 
ployer of a vessel (evercitor naxts) for the 
contracts made by the master. Inst. 4, 7, 25 
3 Kent, Comm. 161. 


EXERCITORIAL POWER. Thetrust 
given to a ship-master. 


EXERCITUAL. In old English law. 
A heriot paid only in arms, horses, or mili- 
tary accouterments, 


EXHIBIT 


EXERCITUS. In old European law. 
An army; an armed force. A collection of 
thirty-five men and upwards. 

A gathering of forty-Ewo armed men. 

A meeting of four men, Spelman. 


EXETER DOMESDAY. The name 
given to arecord preserved among the muni- 
ments and charters belonging to the dean 
and chapter of Exeter Cathedral, which con- 
tains a description of the western parts of the 
kingdom, comprising the counties of Wills, 
Dorset, Somerset, Devon, and Cornwall. Tha 
Exeter Domesday was published with several 
other surveys nearly contemporary, by order 
of the commissioners of the public records, 
under the direction of Sir Henry Ellis, ina 
volume supplementary to the Great Domes- 
day, folio, London, 1816. Wharton. 


EXFESTUCARE. To abdicate or re- 
sign; to resign or surrender an estate, ofttice, 
or dignity, by the symbolical delivery of a 
staff or rod to the alienee. 


EXFREDIARE. To break the peace; 
to commit open violence. Jacob. 


EXHMREDATIO. Inthecivillaw. Dis- 
inheritins; disherison. The formal method 
of excluding an ind+feasible (or forced) heir 
from the entire inheritance, by the teslator’s 
express declaration in the will that such per. 
son shall be ewhaves. Mackeld. Rom. Law, 


§ 711. 
EXHAIRES. Inthe civillaw. One dis- 
inherited. Vicat; Du Cange. 
EXHEREDATE. In Scotch law. To 


disinherit; to exclude from an inheritance, 


EXHIBERE. To present a thing cor- 
poreally, so that if may be handled. Vieat. 
To appear personally to conduct the defense 
of an action at law. 


EXHIBIT, cv. To show or display; to 
otfer or present for inspection. To produee 
anything in public, so that it may be taken 
into possession. Dig, 10, 4, 2. 

To present; to offer publicly or officially; 
to file of record. Thus we speak of exhibit 
ing a charge of treason, exiibiting a biil 
against an ollicer of the king’s bench by way 
of proceeding against him in that court, 

To administer; to cause to be taken; es 
medicines. 


EXHIBIT, n. A paper ordocument pro- 
duced and exhibited to a court during a trial 
or hearing, or to a commissioner taking 
depositions, or to auditors, arbitrators, etc., 


Ne 


Taste tbl eat 


dns 


K. 


EXHIBIT 


459 


EXLEGARE 


a3 a voucher, or in proof of facts, or as other- | Abolislied by St. 7 Wm, IV. and 1 Vict. ¢. 30. 


wise connected with the snbject-matter, and 
which, on being accepted, is marked for 
identification and annexed to the deposition, 
report, or other principal document, or filed of 
record, or otherwise made a part of the case. 

A paper referred to in and filed with the 
bill, answer, or petition in a suit in equity, 
or wilh a deposition. 16 Ga. 68. 


EXHIBITANT. A complainant in arti- 
cles of the peace. 12 Adol. & EK. 599. 


EXHIBITIO BILLZ. Lat. Exhi- 
bition of a bili. In old English practice, 
actions were instituted by presenting or ex- 
hibiting a bill to the court, in cases where the 
proceedings were by bill; hence this phrase is 
equivalent to “commeucement of the suit.” 


EXHIBITION. In Seotch law. An 
action for compelling the production of 
writings. 

In eeclesiasticallaw. An allowance for 
meat and drink, usually made by religious 
appropriators of churches fo the vicar. Also 
the benefaction settled for the maintaining of 
scholars in the universities, not depending on 
the foundation, Paroch. Antig. 304. 


EXIGENCE. Demand, want, need, im- 
perativeness. 


EXIGHNCY OF A BOND. That 
which the bond demands or exacts, i. ¢., the 
act, performance, or event upon which it is 
conditioned. 


EXIGENCY OF A WRIT. The com- 
mand or imperativenesas of a writ; the di- 
recting part of a writ; the act or performance 
which it commands, 


EXIGENDARY. In English law. An 
officer who makes out exigents. 


EXIGENT, or EXIGI FACIAS. L. 
Lat, In English practice. A judicial writ 
made use of in the process of outlawry, com- 
manding the sheriff to demand the defend- 
ant, (or cause him to be demanded, exigi fa- 
eiai,) from county court to county court, un- 
til he be outiawed; or, if he appear, then to 
take and have him before the court on a day 
certain in term, to answer to the plaintiff's 
action. 1 Tidd, Pr. 182; 3 Bl. Comm. 283, 
284; Archb. N. Pr. 435. Now regulated by 
St. 2 Wm. IV. c. 39. 


EXIGHNTER. An officer of the En- 
#lish court of common pleas, whose duty it 
was to make out the exivents and proclama- 
tions in the process of outlawry. Cowell. 


Holthouse. 


HBRIGI FACIAS., That you cause to ba 
demanded. The emphatic words of the Lat 
in form of the writ of exigent. They are 
sumetimes used as the name of that writ. 


EXIGIBLE, Demandable; requirable. 


EXILE. 
ished. 


EXILIUM. Lat. In old English law. 
1. Exile; banishment from one’s country. 

2. Driving away; despoiling. The name 
of a species of waste, which consisted in driv- 
ing away tenants or vassals froin the estate; 


Banishment; the person ban- 


_ a8 by demolishing buildings, and so compel- 


ling the tenants to leave, or by enfranchising 
the bond-servants, and unlawtully turning 
them out of their tenements. Fieta, L 1, 
G29; 


Exilium est patris privatio, natalis 
soli mutatio, legum nativarum amissio. 
7 Coke, 20. Exile is a privation of country, 
a change of natal soil, a loss of native laws. 


EXISTIMATIO. Inthecivil law. The 


_ Civilreputation which belonged to the Roman 


citizen, as such. Mackeld. Rom, Law, § 
135. Called a state or condition of unim- 
peached dignity or character, (digntlativ in- 
lese siatus;) the highest standing of a 
Roman citizen. Dig. 50, 13, 5, 1. 

Also the decision or award of an arbiter, 


EXIT. Lat. ft goes forth. This word 
is used in docket entries as a brief mention 
of the issue of process. Thus, “evil fi. fa.” 
denotes that a writ of fiert facias has been 
issued in the particulur case. The “exit of 
a writ” is the fact of its issuance, 


EXIT WOUND. A term used in medi- 
eal jurisprudence to denote the wound made 
by a weapon on the side where it emerges, 
after it has passed completely through the 
body, or through any part of it. 


EXITUS. Children; offspring. The 
rents, issucs, and profits of lands and tene- 
ments. An export duty. The conclusion 
of the pleadings. 


EXLEGALITAS. In old English iaw. 
Outlawry. Speiman, 
EXLEGALITUS. He who is prosecuted 


as an outlaw. Jacob. 


EXLEGARE. Inold English law. To i 
outlaw; to deprive one of the benefit and 


EXLEX 


protection of the law, (exuere aliquem benefi- 
eto legis.) Spelman. 


EXLEX. In old English law. An out- 
law; gui est extra legem, one who is out of 
the Zaw’s protection. Bract. fol. 125. Qué 
benejicio legis privatur. Spelman. 


EXOINE. In French law. An act or 
instrument in writing which contains the 
reasons why a party in a civil suit, or a per- 
son accused, who has been summoned, agree- 
ably to the requisitions of a decree, does not 
appear. Poth. Proce. Crim. § 3, art. 3. The 
same as “Essoin,” (q. 0.) 


EXONERATION. The removal! of a 
burden, charge, or duty. Particularly, the 
act of relieving a person or estate from a 
charge or liability by casting the same upon 
another person or estate. 

A right or equity which exists between 
those who are successively liable for the 
same debt. “A surety who discharges an 
obligation is entitled to look to the princi- 
pal for reimbursement, and to invoke the aid 
of a court of equity for this purpose, anda 
subsequent surety who, by the terms of the 
contract, is responsible only in case of the 
default of the principal and a prior surety, 
may claim evoneration at the hands of ei- 
ther.” isp. Eq. § 331. 

In Scotch law. A discharge; or the act 
of being legally disburdened of, or liberated 
from, the performance of a duty or obliga- 
tion. Bell. 


EXONERATIONE SECTA. A writ 
that lay for the crown's ward, to be free from 
all suit to the county court, hundred court, 
leet, ete., during wardship. Fitzh. Nat. 
Brev. 158. 


EXONERATIONE SECT AD CU- 
RIAM BARON. A writ of the same nat- 
ure as that last above described, issued by the 
guardian of the crown’s ward, and addressed 
to the sheriffs or stewards of the court, for- 
bidding them to distrain him, etc., for not 
doing suit of court, ete. New Nat. Brey. 
352. 


EXONERETUR. Lat. Let him be re- 
lieved or discharged. An entry made ona 
bail-piece, whereby the surety is relieved or 
discharged from further obligation, when 
the condition is fulfilled by the surrender of 
the principal or otherwise, 


EXORDIUM. The beginning or intro- 
ductory part of a speech. | 


460 


EXPEDITATM ARBORES 


EXPATRIATION. The voluntary act 
of abandoning one’s country, and becoming 
the citizen or subject of another. See Em 
IGRATION, 


EXPECT. To await; to look forward ta 
something intended, promised, or likely to 
happen. 


EXPECTANCY. The condition of being 
deferred to a future time, or of dependence 
upon an expected event; contingency as to 
possession or enjoyment. 

With respect to the time of their enioy- 
ment, estates may either be in possession or 
in expectancy; and of expectancies there are 
two sorts,—one created by the act of the 
parties, called a “remainder;” the other by 
act of law, called a “reversion.” 2 BI. 
Comm. 163, 


EXPECTANT. Having relation to, or 
dependent upon, a contingency. 


EXPECTANT ESTATES. Interests to 
come into possession and be enjoyed in futu- 
ro, They are of two sorts at common law,— 
reversions and remainders. 2 Bl. Comm. 
163. 


EXPECTANT HEIR. A person who 
has the expectation of inheriting property or 
an estate, but small present means. The 
term is chiefly used in equity, where relief 
is afforded to such persons against the ens 
forcement of “catching bargains,” (g. v.) 


EXPECTATION OF LIFE, in the 
doctrine of life annuities, is the share or 
number of vears of life which a person ofa 
given age may, upon an equality of chance, 
expect to enjoy. Wharton. 


EXPEHEDIMENT. The whole of a per- 
son’s goods and chattels, bag and bagyage. 
Wharton. 


Expedit reipublice ne sua re quis 
male utatur. Itis for the interest of the 
state that a man should not enjoy his own 
property improperly, (to the injury of oth- 
ers.) Inst. 1, 8, 2. 


Expedit reipublice ut sit finis litinm. 
It is for the advantage of the state that there 
be an end of suits; itis for the public good 
that actions be brought to aclose. Co. Litk. 
3030. 


EXPEDITATA ARBORES. 
rooted up or cut down to the roots. 
1. 2, c. 41. 


Trees 
Fileta, 


EXPEDITATE 461 


EXPEDITATE. In forestlaw. To cut 
out the ball of a dog's forefeet, for the pres- 
ervation of the royal game. 


EXPEDITATION, A cutting off the 
claws or ball of the forefeet of mastiffs, to 
prevent their running after deer. Spelman; 
Cowell, 


EXPEDITIO, An expedition; an irreg- 
ular kind of army. Spelman. 


EXPEDITIO BREVIS. Inold practice. 
The service of a writ. Townsh. Pl. 43. 


EXPENDITORS. Paymasters. Those 
who expend or disburse certain taxes. Hs- 
pecially the sworn officer who supervised the 
repairs of the banks of the canals in Romney 
Marsh. Cowell. 


EXPENS@ LITIS. Costs or expenses 
of the suit, which are generally allowed to 
the successful party. 


EXPENSIS MILITUM NON 1JE- 
VANDIS. An ancient writ to prohibit the 
sheriff from levying any allowance for knights 
of the shire upon those who held lands in 
ancient demesne. Rog. Orig. 261. 


Experientia per varios actus legem 
facit. Magistra rerum experientia. Co. 
Litt. 60. Experience by various acts makes 
law. Experience is the mistress of things. 


EXPERTS. Persons examined as wit- 
nesses in a cause, who testify in regard to 
some professional or technical matter arising 
in the case, and who are permitted to give 
their opinions as to such matter on account 
of their special training, skill, or familiarity 
with it. 


Persons selected by the court or parties in a 
cause, on account of their knowledge or skill, to 
examine, estimate, and ascertain things and make 
areport of their opinions. Merl. Repert. 

Persons professionally acquainted with the sci- 
ence or practice in question. Strick. Ev. 408. 
Persons conversant with the subject-matter on 
questions of science, skill, trade, and others of like 
kind. Best, Ey. § 346. 

An expert is a person who possesses peculiar 
skilland knowledge upon the subject-matter that 
he is required to give an opinion upon, 48 Vt, 
866. 

An expert is a skillful or experienced person; a 
person having skill or experience, or peculiar 
knowledge on certain subjects, or in certain pro- 
fessions; a scientific witness. 45 Me. 892; 52 Me. 
68. 


EXPILARE, Inthecivillaw. ‘Tospoil; 
to rob or plunder. Applied to inheritances. 
Dig. 47, 19; Cod. 9, 32. 


EXPORT 


EXPILATIO, In the civil law. The 
offense of unlawfully appropriating govds 
belonging to a succession. It is not technic- 
ally theft (fart) because such property 
no longer belongs to the decedent, nor to the 
heir, since the latter has not yet taken pos- 
session. 


EXPILATOR. Inthecivil law. Arob- 
ber; a spoiler or plunderer. #2xpitiatores 


sunt atrociores fures. Dig. 47, 18, 1, 1. 


EXPIRATION. Cessation; termination 
from mere lapse of time; as the expiration 
of a lease, or stitute, and the like. 


EXPIRY OF THE LEGAL. InScotch 
law and practice. Expiration of the period 
within which an adjudication may be re- 
deemed, by paying the debt in the decree of 
adjudication, Bell. 


EXPLEES. See Esriues. 


EXPLETA, EXPLETIA, or EXPLE- 
CIA. Inold records. The rents and profits 
of an estate. 


EXPLICATIO. In the civil law. The 
fourth pleading; equivalent to the surre- 
joinder of the common law. Calvin. 


EBEXPLORATOR. Ascout, huntsman, or 
chaser. 


EXPLOSION. Asuddenand rapid com- 
bustion, causing violent expansion of the air, 
and accompanied by a report. 


The word “explosion” is variously used in ordi- 
nary speech, and is not one that admits of exact 
definition. Every combustion of an explosive sub- 
atance, whereby other property is ignited and con- 
sumed, would not be an “explosion,” within the 
ordinary meaning of the term. It is not used asa 
synonym of “combustion.” An explosion may be 
described gceuerally as a sudden and rapid com- 
bustion, causing violent expansion of the air, and 
accompanied by a report. But the rapidity of the 
combustion, the violence of the expunsion, and the 
veliemence of the report vary in intensity as often 
as the occurrences multiply. Hence an explosion 
is an idea of degrees; and the true meaning of the 
word, in each particular case, must be settled, not 
by any fixed standard or accurate measurement, 
but by the common experience and notions of men 
in matters of that sort. 22 Ohio St. 340. 


EXPORT, ». To send, take, or carry an 
article of trade or commerce out of the coun- 
try. To transport merehandise from one 
country to another in the course of trade. To 
carry out or convey goods by sea. Vaughn, 
171, 172; 5 Harr. 501. 


EXPORT, zn. A thing or commodity 
exported. More commonly used in the plu- 
ral. 


EXPORTATION 


EXPORTATION. The act of sending 
or carrying goods and merchandise from one 
country to another. 


EXPOSE, o. 
hibit. 


To show publicly; to ex- 


EXPOS &, nm. «Fr. A statement; ac- 
count; recital; explanation. The term is 
used in diplomatic language aa descriptive 
of a written explanation of the reasons for 
a ceriuin act or course of conduct. 


EXPOSITIO. Explanation; exposition; 
interpretation. 


Expositio que ex visceribus cause 
nascitur, est aptissima et fortissima in 
lege, That kind of interpretation which 
is born [or drawn] from the bowels of a 
cause is the aptest and most forcible in the 
law. 10 Coke, 24d. 


EXPOSITION. Explanation; interpre- 
tation. 


EXPOSITION DEH PART. In French 
law. ‘The abandonment of a child, unable 
to take care of itself, either in a public or 
private place. 


EXPOSURE OF PERSON. In crim- 
inallaw. Such an intentional exposure, in 
a public place, of the naked body or the pri- 
vate parts as is calculated to shock the feel- 
ings of chastity or to corrupt the morals of 
the community. 


EXPRESS. Mads known distinctly and 
explicitly, and not left to inference or im- 
plication. Declared in terms; set forth in 
words. Manifested by direct and appropri- 
ate language, as distinguished from that 
which is inferred from conduct. The word 
is usually contrasted with “implied.” 


EXPRESS ABROGATION. Abroga- 


tion by express provision or enactment; the | 


462 


EXPRESSIO EORUM, ETC. 


porting parcels or other movable property, In 
the capacity of common carriers. 


EX PRESS CONSIDERATION. A 
consideration which is distinctly and spe 
cifically named in the written contract or in 
the oral agreement of the parties. 


EXPRESS CONTRACT. A _ contract 
the terms of which are openly uttered or de- 
clared uf thetime of makingit. 2 Bl, Comm 
443; 2 Steph. Comm, 110. A contract made 
in distinct and explicit language, or by writ- 
ing; as distinguished from an implied con- 
tract. 2 Kent, Comm. 450. 


EXPRESS MALICE. Actual malice; 
malicein fact; a deliberate intention tocom- 
mitan injury, evidenced by external circum- 
stances. 


EXPRESS TRUST. A trust created or 
declared in express terms, and usually in 
writing, as distinguished from one inferred 
by the law from the conduct or dealings of 
the parties. 

Express trusts are those which are created in ex- 
press terms in the deed, writing, or will, while 
implied trusts are those which, without being ex- 
pressed, are deducible from the nature of the trans- 
action, as matters of intent, or which are superin- 
duced upon the transactions by operation of law, 
as matters of equity, independently of the particu- 
lar intention of the parties. 56 Barb, 635. 


EXPRESS WARRANTY. One ex- 
pressed by particular words. 2 Bl. Comm. 
300. 


In the law of insurance. An agree 
ment expressed in a policy, whereby the as- 
sured stipulates that certain facts relating te 
the risk are or shall be true, or certain acts 
relating to thesame subject have been or shall. 
be done, 1 Phil. lus. (4th Ed.) p. 425. 


Expressa nocent, non expressa non 
nocent. Things expressed are [may be] 
prejudicial; things not expressed are not. 


repeal of a law or provision by a subsequent | Express words are sometimes prejudicial, 


one, referring directly to it. 


EXPRESS ASSUMPSIT. An under- 
taking to do some act, or to pay a sum of 
money fo another, manifested by express 
terms. 


EXPRESS COLOR. An evasive form 
of special pleading 1n a@ case where the de- 
fendant ought to plead the general issue. 
Abolished by the common-law procedure act, 
1852, (15 & 16 Vict. c. 76, § 64.) 


EXPRESS COMPANY. A firm or core 
poration engaged in the business of trans« 


which, if omitted, had done no harm. 
30, 1, 52; Id. 50, 17, 195. See Calvin. 


Expressi non prosunt que non ex- 
pressa proderunt. 4 Coke, 73. The ex: 
pression of things of which, if unexpressed, 
one would Lave the benefit, is useless. 


Dig. 


Expressio eorum qua tacite insunt 
nihil operatur. The expression or express 
mention of those things which are tacitly im- 
plied avails nothing. 2 Inst. 365. A man's 
own words are void, when the law speaketh 
as much. Finch, Law, b. 1, c& 3, no. 26. 
Words used to express what the law will im- 


EXPRESSIO UNIUS, ETC. 


ply without them are mere words of abun- 
dance, 6 Coke, 11. 


Expressio unius est exclusio alterius. 
The expression of one thing is the exclusion 
of another. Co. Litt. 210a@. The express 
mention of one thing [person or place] im- 
plies te exclusion of another. 


Eixpressio unius persons: est exclusio 
altering. Cv. Litt. 210. The mention of 
one person is the exclusion of another, See 
Broom, Max. 651. 


Expressum facit cessare tacitum. 
That which is expressed makes that which is 
implied to cease, [that is, supersedes it, or 
controls its effect.} Thus, an implied cove- 
nant in a deed is in all cases controlled by an 
express covenant. 4 Coke, 80; Broom, Max. 
651. 

Expressum servitium regat vel de- 


Claret tacitum. Let service expressed rule 
or declare what is silent. 


EXPROMISSIO. Inthe civillaw. The 
species of novation by which a creditor ac- 
cepts a new debtor, who becomes bound in- 


stead of the old, the latter being released. 1 | 


Bouv. Inst. no. 802. 


EXPROMISSOR. In the civil law. A 
person who assumes the debt of another, and 
becomes solely liable for it, by a stipulation 
with the creditor. He differs from a surety, 
inasmuch as this contract is one of novation, 
while a surety is jointly liable with his prin- 
cipal. Mackeld. Rom. Law, § 538. 


EXPROMITTERE. In the civil law. 
To undertake for another, with the view of 
becoming liable in his place. Calvin. 


EXPROPRIATION. ‘This word prop- 
erly denotes a voluntary surrender of rights 


orclaims; the act of divesting oneself of that 


which was previously claimed as one’s own, 
or renouncing it. In this sense it is the op- 
posite of “appropriation.” But a meaning 
has been attached tothe term, imported from 
its use in foreign jurisprudence, which makes 
it synonymous with the exercise of the power 
of eminent domain, @% e¢, the compulsory 
taking froma person, on compensation made, 
of his private property for the use of a rail- 
road, canal, or other public work. 

In French law. Expropriation is the 
eompulsory realization of a debt by the cred- 
itor out of the lands of his debter, or the usu- 
fruct thereof. 
wilh others, it is necessary that a partition 
should first be made, It is confined, in the 


When the debtor is co-tenant | 
of debts. 


463 


EXTENSION 


first place, to the lands (if any) that are in 
hypotheque, but afterwards extends to the 
lands not in fAypothtque. Moreover, the 
debt must be ofa liquidated amount. Brown. 


EXPULSION, A putting or driving ont. 
The act of depriving a niember of a corpora- 
tion, legislative body, assembly, society, com- 
mercial organization, etc., of his membership 
in the same, by a legal vote of the body it- 
self, for breach of duty, improper conduct, 
or other sufficient cause, 


EXPUNGE. To blot out; to efface de- 
signedly; to obliterate; to strike out wholly. 
Webster. 


EXPURGATION. The act of purging 
or cleansing, a8 where a book is published 
without its obscene passages. 


EXPURGATOR. One who corrects by 
expurging. 


EXQUASTOR. In Roman law. One 
who had filled the office of guastor. A title 
given to Tribonian. Inst. proewm, § 3. Used 
only in the ablative case, (eaquestore.) 


EXROGARE. (From ex, from, and 7o- 
gare, to pass a law.) In Roman law. To 
take something from an old law by a new 
law. Tayl. Civil Law, 155. 


EXTEND. Im English practices. To 
value the lands or tenements of a person 
bound bya statute or recognizance which has 
become forfeited, to their full extended value. 
3 Bl. Comm. 420; Fitzh. Nat. Brev. 131. 
To execute the writ of evtent or extendi fa- 
clas, (gq. 0.) 2 Tidd, Pr. 1048, 1044, 

In taxation. Extending a tax consists in 
adding to the assessment roll the precise 
amount due from each person whose name 
appears thereon, “The subjects for taxation 
having been properly listed, and a basis for 
apportionment established, nothing will re- 
main to fix a definite liability but to extend 
upon the list or roll the several proportionate 
amounts, as a charge against the several taxae 
bles.” Cooley, Tax’n, (2d Ed.) 423. 


EXTENDI FACIAS. Lat. You cause 
to be extended. In English practice. The 
name of a writ of execution, (derived from its 


two emphatic words;) more commonly called » 


an “extent.” 
Comm. 43. 


EXTENSION. In mercantile law. An 
allowance of additiunal time for the payment 
An agreement belween a debtor 
and his creditors, by which they allow him 


2 Tidd, Pr. 1043; 4 Steph. 


EXTENSION GF PATENT 


further time for the payment of his liabili- 
ties. 


EXTENSION OF PATENT. An ex- 
tension of the life of a patent for an additional 
period of seven years, formerly allowed by 
law in the United States, upon procf being 
made that the inventor had not succeeded in 
obtaining a reasonable remuneration from 
his patent-right. This is no longer allowed, 
except as to designs. See Rev. St. U. 8. 
§ 4924. 


EXTENSORES. In old English law. 
Extenders or appraisers, The name of cer- 
tain officers appointed to appraise and divide 
or apportion lands, It was their duty to 
make a survey, schedule, or inventory of the 


lands, to lay them out under certain heads, | 
| TINGUISHMENT., 


and then to ascertain the value of each, as 
preparatory to the division or partition. 
Bract. fols. 726, 75; Britt. c. 71. 


EXTENT. In English practice. <A 
writ of execution issuing froin the exchequer 
upon a debt due the crown, or upon a debt 
due a private person, if upon recognizance or 


statute merehant or staple, by which the | 


sheriff is direeted to appraise the debtor's 
lands, and, instead of selling them, to set 
them off to the creditor for aterm during 
whichthe rental will satisfy the judgment. 

In Scotch practice. The value or val- 
uation of lands. Bell. 

The rents, profits, and issues of lands. 
Skene. 


EXTENT IN AID. In English practice. 
That kind of extent which issues at the in- 
stance and for the benetit of a debtor to the 
erown, for the recovery of adebt due to hiin- 
self. 2 Tidd, Pr. 1045; 4 Steph. Comm. 47. 


EXTENT IN CHIEF. In English prac- 
tice. The principal kind of extent, issuing 
at the suit of the crown, for the recovery ot 
the erown’s debt, 4 Steph. Comm. 47. An 
adverse proceeding by the king, for the re- 
covery of his own debt. 2 Tidd, Pr. 1045. 


EXTENTA MANERII. (The extent or 
survey of a manor.) ‘The title of a statute 
passed 4 Edw. I. st. 1; being a sort of di- 
rection for making a survey or terrier of a 
manor, and all its appendages. 2 Reeve, 
Eng. Law, 140, 


EXTENUATE. To lessen; to palliate; 
to mitigate. 


EXTENUATING CIRCUMSTANCES. 
Such as render a delict or crime less aggra- 
vated, heinous, or reprehensible thanit would 


464 


EXTINGUISHMENT OF DEBTS 


otherwise be, or tend to palliate or lessen its 
guilt. Such circumstances may ordinarily he 
shown in order to reduce the punishment or 
damages. 


EXTEERRITORIALITY. The privilege 


_ of those persons (such as foreign ministers) 


who, though temporarily resident within a 
state, are not subject to the operation of its 
laws. 


EXTERUS. Lat. A foreigner or alien; 
one born abroad. The opposite of cévis, 


Exterus non habet terras. An alien 
holds no lands. Tray. Lat. Max, 203. 


EXTINCT. Extinguished. <A rent is 
said to be extinguished when it is destroyed 
and put out, Co. Litt. 147). See Ex 


Extincto subjecto, tollitur adjunctum. 
When the subject is extinguished, the inci- 
dent ceases. ‘Thus, when the business for 
which a partnership has been formed is com- 
pleted, or brought to an end, the partnership 
itself ceases. Inst. 3, 26,6; 3 Kent, Comm, 
52, note. 

EXTINGUISHMENT. The destruc. 
tion or cancellation of a right, power, con- 
tract, or estate. The annihilation of a evl- 
lateral thing or subject in the subject itself 
out of which it is derived. Prest. Mery, 
9. For the distinction between an extinguish- 
ment and passing a right, see 2 Shars. Bl 
Comm. 325, note. 

“Hixtinguishment”™ {3 sometimes confounded 
with “merger, * though there is a clear distinction 
between them. “Merger” is only a mode of ex- 
tinguisbment, and applies to estates only under 
particular circumstances; but “extinguishment” 
is a term of general application to rights, as well 
as estates. 2 Crabb, Real Prop. p. 367, § 1487. 


EXTINGUISHMENT OF COMMON. 
Loss of the right to bave common. This 
may happen from various causes. 


EXTINGUISHMENT OF COPY- 
HOLD. In English law. A copyhold is 
said to be extingutshed when the freehold 
and copylold interests unitein the same per- 
son and in the same right, which may be 
either by the copyhold interest coming to the 
freehold or by the freehold interest coming 
tothe copyhold. 1 Crabb, Real Prop. p. 670, 
§ 864. 


EXTINGUISHMENT OF DEBTS. 
This takes place by payment; by accord and 
satisfaction; by novation, or the substita- 
tion of a new debtor; by merger, when the 
creditor recovers a judgment or accepts a 


-EXTINGUISHMENT OF RENT 


ity of a higher nature than the original 
jon; by a release; by the marriage of 
ne sole creditor with the debtor, or of 
obligee wilh one of two joint obligors; 
and where one of the parties, debtor or cred- 
_ itor, makes the other his executor. 


EXTINGUISHMENT OF RENT. If 
A person have a yearly rent of lands, and 
Afterwards purchase those lands, so that he 
hes as good an estate in the Jand asin the 
rent, the rent is extingwisked. Termes de 
la Ley; Cowell; Co. Litt, 147. itent may 
also be extinguished by conjunction of es- 
tates. by confirmation, by grant, by release, 
and by surrender. 1 Crabb, Real Prop. 


pp. 210-218, § 209, 


EXTINGUISHMENT OF WAYS. 
This is usually effected by unity of posses- 
sion. As if aman have a way over the close 
of another, and he purchase that close, the 
way is extinguished. 1 Crabb, Real Prop. 
p. 841, § 384. 


EXTIRPATION. In English law. A 
species of destruction or waste, analogous to 
estrepement, See EsrReEPEMENT. 


EXTIRPATIONE. A judicial writ, ei- 
ther before or after judgment, that lay 
againsi a person who, when a verdict was 
found against him for land, ete., maliciously 
overthrew any house or extirpated any trees 
apon it. Reg. Jud. 13, 56. 


EXTOCARE. In old records. To grub 
woodland, and reduce it to arable or meaduw; 
“tostock up.” Cowell. 


EXTORSIVELY. A_ technical word 
used in indict:nents for extortion. 

It is a sufficient ayerment of a corrupt 
intent, in an indictment for extortion, to 
allege that the defendant “oxtorsively” took 
the unlawful fee. 85 Ark. 438. 


EXTORT. The natural meaning of the 
word “extort” is to obtain money or other 
valuable thing either by compulsion, by act- 
ual force, or by the force of motives ap- 
plied to the will, and often more overpower- 
ing and irresistible than physical force. 12 
Cush. 90. 


Extortio est crimen quando quis colore 
officil extorquet quod non est debitum, 
vel supra debitum, vel ante tempus quod 
est debitum. 10 Coke, 102. Extortion is 
& crime when, by color of office, any person 
extorts that which is not due, or more than 
is due, or before the time when it is due, 

AM. DICT.LAW—uU 


465 


EXTRA-JU DICIUM 


EXTORTION. Any oppression by color 
or pretense of right, and particularly the ex- 
action by an officer of money, by color of his 
office, either when none at all is due, or not 
so much is due, or when itis not yet dus. 4 
Conn. 480. 


Extortion consists in any public officer un- 


lawfully taking, by color of his office, from 
any person any money or thing of value that 
is not dne to him, or more than his due. 
Code Ga. 1882, § 4507. 

Extortion is the obtaining of property from 
another, with his consent, induced by wrong- 
ful use of force or fear, or under color of of- 
ficial right. Pen. Code Cal. § 518; Pen. 
Code Dak. § 608. 

Extortion ig an abuse of publio justice, which 
consists in any officer unlawfully taking, by color 
of his office, from auy man any money or thing of 
valua that is not due to him, or before itisdue. 4 
Bi. Comm. 141. 

Extortion is any oppression under color of right. 
In a stricter sense, the taking of money by any of- 
ficer, by color of his office, when none, or not so 
tauch, is due, or itis not yet due, 1 Hawk. P. C. 
(Curw. Ed.) 418. 

Itis the corrupt demanding or receiving by a 
person in office of a fee for services which should 
be performed gratuitously; or, where compensa- 
tion is permissible, of a larger fee than the law 
justifies, or a fee not due. 2 Bish. Crim. Law, 
§ 390. 

The distinction between “bribery” and “extor- 
tion” scems to be this: the former offense consists 
in the offering a present, or receiving oue, if of- 
fered; the latter, in demanding a fee or present, by 
color of office. Jacob. 

For the distinction between “extortion” 
and “exaction,” see EXACTION, 


EXTRA. A Latin preposition, occurring 
in many legal phrases; it means beyond, ex- 
cept, without, ont of, outside. 


EXTRA COSTS. In English practice. 
Those charges which do not appear upon the 
face of the proceedings, such as witnesses’ 
expenses, fees to counsel, attendances, court 
fees, ete., an affidavit of which must be made, 
to warrant the master in allowing them upon 
taxation of costs, Wharton, 


EXTRA-DOTAL PROPERTY. In 
Louisiana this term is used to designate that 
property which forms no part of the dowry 
of a woman, and which is also ealled “para- 
phernal property.” Civil Code La. art, 2315. 

EXTRA FEODUM. Out of his fee; out 
of the seigniory, or not hoklen of him that 
claims it. Co. Litt. 1b; Reg. Orig. 978. 

EXTRA-JUDICIUM,  Extrajudicial; 


out of the proper cause; outof court; beyond 
the jurisdiction, See ExrRAJUDICIAL. 


Ml 


EXTRA JUS 


EXTRA JUS. Beyond the law; more 
than the iw requires. In jure, vel extra 
jus. Bract. fol. 169%. 


EXTRA LEGEM. Out of the law; out 
of the protection of the law. 


Extra lezem positus est civiliter mor- 
tuus, Co. Litt. 130. He who is placed out 
of the law is civilly dead. 


EXTRA PRAISENTIAM MARITI. 
Qut of her husband’s presence. 


EXTRA QUATUOR MARIA. Beyond 
the four seas; out of the kingdom of Eng- 
land. 1 Bl. Comm. 457. 


EXTRA REGNUM. Out of the realm. 
7 Coke, 16a; 2 Kent, Comm. 42, note. 


EXTRA SERVICES, when used with 
reference to officers, means services incident 
to the office in question, but for which com- 
pensation has not been provided by law. 21 
Tnil. 32. 


EXTRA-TERRITORIALITY, The ex- 
tra-territoria] operation of laws; thatis, their 
operation upon persons, rights, or jural re- 
lations, existing beyond the limits of the en- 
acting sliute, but still amenable to its laws. 


EXTRA TERRITORIUM. Beyond or 
without the territory. 6 Bin. 353; 2 Kent, 
Comm. 407, 


Extra territorium jus dicenti impune 
non parefur. One who exercises jurisdic- 
tion out of his territery is not obeyed with 
impanity. Dig. 2, 1,20; Branch, Prine.; 10 
Coke, 77. He who exercises judicial author- 
ity beyond his proper limits cannot be obeyed 
with safety. 


EXTRA VIAM. Ontside the way. 
Where the defendant in trespass pleaded a 
right of way in justification, and the repli- 
eation alleged that the trespass was coinmit- 
ted outside the limits of the way cluimed, 
these were the technical words to be used. _ 


EXTRA VIRES. Beyond powers. 
ULTRA VIBES. . 


EXTRACT. A portion or fragment of a 
writing. In Scotch law, the certilied copy, 
by a clerk of a court, of the proceedings in 
an action carried on before the court, and of 
the judgment pronounced; containing also an 

_order for execution or proceedings thereupon. 
Jacob; Whishaw. 


EXTRACTA CURIA. In old English 
law. ‘The issues or prolits of holding a court, 
urising from the customary fees, etc. 


Sea 


466 


EXTRAORDINARY CARE 


EXTRADITION. The surrender of a 
criminal by a foreign state to which he has 
fled for refuge from prosecution to the state 
within whose jurisdiction the crime was com. 
mitted, upon the demand of the latter state, 
in order that he may be dealt with according 
to its laws. Extradition may be accorded as 
amere matter of comity, or may take place 
under treaty stipulations between the two 
nations. It also obtains as between the dif- 
ferent states of the American Union. 


Extradition between the states must be consid- 
cred and defined to be a political duty of imperfect 
obligation, founded upon compact, and requiring 
each stata to surrender one who, having violated 
the criminal laws of another state, has fied from 
its justice, and is found in the state from which 
he is demanded, on demand of the executive au- 
thority of the state from which he fied. Abbott. 


EXTRAHURA. Inold Englishlaw. An 
animal wandering orstraying about, without 
an owner; an estray. Spelman. 


BXTRAJUDICIAL. That which is done, 
given, or effected outside the course of regu- 
lar judicial proceedings; not founded upon, 
or unconnected with, the action of a court of 
law; as extrajudicial evidence, an exbrajudi- 


; cial oath. 


That which, though done in the course of 
regular judicial proceedings, is unnecessary 
to such proceedings, or interpolated, or be- 
yond their scope; us an extrajudicial opinion, 
(dieium.) 

That which does not belong tothe judge or 
his jurisdiction, notwithstanding which he 
takes cognizance of ib. 


EXTRANEUS. In old English law, 
One foreign born; a foreigner. 7 Coke, 16. 
In Roman law. An heir not born inthe 
family of the testator. Those of a foreign 


state. The same as @licnus. Vieat; Du 
Cange. 
Extraneus est subditus qui extra 


terram, i. e., potestatem regis natus est, 
7 Coke, 16. A foreigner is a subject wlio is 
born out of the territory, ¢. ¢., government of 
the king. 


EXTRACRDINARY. The writs of 
mandamus, quo warrantoa, habeas carpus, 
and some others are sometimes called “ex- 
traordinary remedies,” in contradistinction 
to the ordinary remedy by action. 


EXTRAORDINARY CARE is synony- 
mous with greatest care, utmost care, bigh- 
est degree of care. 54 Ill. 19, See Care; 
DILIGENCE; NEGLIGENCE, 


EXTRAPAROCHIAL 


EXTRAPAROCHIAL. Outofa parish; 
not within the bounds or limits of any parish. 
1 Gl. Comm. 113, 284. 


EXTRAVAGANTES. In canon law. 
Those decretal epistles which were published 
after the Clementines. They were so called 
because at first they were not digested or ar- 
ranged with the other papal constitutions, 
but seemed to be, as It were, detached from 
the canon law, They continued to be called 
by the same name when they were atter- 
Wards inserted in the body of the canon law. 
The first extravagantes are those of Pope 
John XXII., successor of Clement V. The 
last collection was brought down to the year 
1483, and was called the “Common Extrav- 
agantes,” notwithstanding that they were 
likewise incorporated with the rest of the 
canonlaw. Enc. Lond. 


EXTREME HAZARD. To constitute 
extreme hazard, the situation of a vessel 
must be such that there is imminent danger 
of her being lost, notwithstanding all the 
Means that can be applied to get her off. 1 
Conn. 421. 


EXTREMIS. When a person is sick he- 
youdthe hope of recovery, and near death, 
he is said to be in extremis. 


Extremis probatis, presumuntur 
media. Extremes being proved, intermedi- 
ate things are presumed, Tray. Lat. Max. 
207. 


EXTRINSIC. 
sources; dehors. 


Foreign; from outside 


467 


EZARDAR 


EX TUM as. In old records. 
Cowell. 


EXUERE PATRIAM. To throw off or 
renounce one’s country or native allegiance; 
to expatriate one’s self. Phillim. Dom. 18. 


Relics. 


EXULARE. In old English law. To 
exileor banish. MNullus diber homo, exuletur, 
nisi, etc., no freeman shall be exiled, unless, 
etc. Magna Charta, c, 29; 2 Inst. 47. 


EXUPERARE. To overcome; toappre- 
hend or take. Leg. Edm. c¢. 2. 


EY. A watery place; water. 


EYDE. 
sidy. 


EYE-WITNESS. One whe saw the act, 
fact, or transaction to which he testifies. 
Distinguished from an ear-witness, (auritus.) 


Co, Litt. 6. 


Aid; assistance; relief. A sub- 


EYOTT. A small island arising ina river. 
Fieta, 1. 3, ¢. 2, § b; Bract. 1. 2, ¢. 2. 


EYRE, Justices in eyre were judges com- 
missioned in Anglo-Norman times in England 
to travel systematically through the kingdom, 
once in seven years, holding courts in speci- 
fled places for the trial of certain deseriptions 
of causes. 


EYRER. I. Fr. To travel or journey; 
to go about or itinerate. Britt. c. 2. 


EZARDAR. In Hindu law. <A farmer 
or renter of land in the districts of Hindoo- 
stan. 


ity 


i. 


F. In old English criminal law, this let- 
ter was branded upon felons upon their be- 
ing admitted to clergy; as also upon those 
convicted of fights or frays, or of falsity. 
Jacob; Cowell; 2 Reeve, Eng. Law, 392; 4 
Reeve, Eng. Law, 485. 


¥. 0. B. Free on board. <A term fre- 
quently inserted, in England, in contracts for 
the sale of goods to be conveyed by ship, 
meaning that the cost of shipping will be 
paid by the buyer. When goods are so sold 
in London the buyer is considered as the 
shipper, and the goods when shipped are at 
his risk. Wharton. 


FABRIC LANDS. In English law, 
Lands given towards the maintenance, re- 
ouilding, or repiiring of cathedral and other 
churches. Cowell; Blount. 


FABRICA. In old English law. The 
making or coining of money. 


FABRICARE. Lat. To make. Used 
in old English law of a lawful coining, and 
also of an unlawful making or counterfeiting 
of coin. See 1 Salk. 342. 


FABRICATE. To fabricate evidence is 
to arrange or manufacture circumstances or 
indicia, after the fact committed, with the 
purpose of using them as evidence, and of 
deceitfully making them appear as if acci- 
dental or undesigned; to devise falsely or 
contrive by artifice with the intention to de- 
ceive. Such evidence may be wholly forged 
and artificial, or it may consist in so warping 
and distorting real facts as to create an erro- 
neous impression in the minds of those who 
observe thein and then presenting such im- 
pression as true and genuine, 


FABRICATED EVIDENCKH. Evidence 
manufactured or arranged after the fact, and 
either wholly false or else warped and dis- 
colored by artifice and contrivance with a de- 
ceitful intent. See FABRICATE. 


FABRICATED FACT. In the law of 
evidence. <A fact existing only in stalement, 
without any foundation in truth. Anactual 
or genuine fact to which a false appearance 
bas been desicnedly given; a physical object 
placed in a false connection with another, or 
wilh a personon whom it is designed to cast 
suspicion. See FABRICATE. 


463 


————— eg Eee 


FACIES 


FABULA. Inold European law. Acon. 
tract or formal agreement; but particularly 
used in the Lombardie and Visigothic laws 
to denote a marriage contract or a will. 


FAC SIMILE. An exact copy, preserv: 
ing all the marks of the original. 


FAC SIMILE PROBATE. In England, 
where the construction of a will may be af- 
fected by the appearance of the original pa- 
per, the court will order the probate to pasa 
in fae siimitie, as it may possibly help to shaw 
the meaning of the testator, 1 Williams, 
Ex’rs, (7th Ed.) 831, 386, 566, 


FACE. The face of an instramentis that 
which is shown by the mere’ language em- 
ployed, without any explanation, modifica. 
tion, or addition from extrinsic facta or eyvi- 
dence. Thus, if the express terms of the 
paper disclose a fatal legal defect, it is said 
to be “void on its face.” 

Regarded ag an evidence of debt, the face 
of an instrument is the principal sum which 
it expresses to be due or payable, without 
any additions in the way of interest or costs, 
Thus, the expression “the face of a judg- 
ment” means the sum for which the judg: 
ment was renderel, excluding the interest 
accrued thereon. 82 lowa, 265, 


FACERE. Lat. Todo; tomake. Thug, 
facere defaltam, to make default; fucere 
duellum, to make the duel, or muke or do bat- 
tle; facere finem, to make or pay a fine; 
facere legem, to make one’s law; jfacere 
sacramentum, to make oath. 


FACIAS. Thatyou canse. Occurring in 
the phrases “seive fucias,” (that you case 
to know,) “fiert facias,” (that you cause te 


‘be made,) ete, 


FACIENDO. 
some activity. 


In doing or paying; in 


FACIES. Lat. The face or countenance; 
the exterior appearance or view; hence, con- 
teimplation.or study of a thing on its external 
or apparent side. Thus, prima facie means 
at the first inspection, on a preliminary or 
exterior scrutiny. When we speak of a 
“prima facie case,” we mean one which, on 
its own showing, on a first examination, or 
without investigating any alleged defenses, 
is apparenlly good and maintainable, 


FACILE 


_ FACILE. In Seoteh law. 
‘suaded; easily imposed upon. 


Easily per- 
Bell 


FACILITIES. ‘This name was formerly 
given to certain notes of sume of the banks 
in the state of Connecticut, which were made 
piyable in two years alter the close of the 
war of 1812. 14 Mass. 322. 


FACILITY. In Scotch law. 
disposition. Bell. 


Facinus quos inquinat cequat. 
makes equal thosa whom it stains. 


FACIO UT DES. (Lat. Ido that you 
may give.) A species of contract in the 
civil law (being one of the innominate con- 
tracts) which occurs when a man agrees to 
perform anything for a price either specific. 
ally mentioned or left to the determination 
of the law to set a value on it; as whena 
servant hires himself to his muster for cer- 
tain wages or an agreed sum of money. 2 
Bl. Comm. 445. 


FACIO UT FACIAS. (Lat. I do that 
you may do.} <A species of contract in the 
¢tivil law (being one of the innominate con- 
tracts) which occurs when I agree with a 
min to do his work for him if he will do 
mine for me; or if two persons agree to mar- 
ry together, or to do any other positive acts 
on both sides; or it may be to forbear on one 
side in consideration of something done on 
the other, 2 31. Comm. 444. 


Pliancy of 


Guilt 


FACT. A thing done; an action per- 
formed or an incident transpiring; an event 
or circumstance; an actual occurrence. 

In the earlier days of the law “faci” was 
used almost exclusively in the sense of “ac- 
tion” or “deed;” but, although this usage 
survives, in some such phrases as “accessary 
before the fact,” it has now acquired the 
broader meaning given above, 

A fact is either a state of things, that is, an ex- 
istence, or & motion, that is, an event 1 Benth. 
Jud. Ey. 48. 

In the law of evidence, A circumstance, 
event, or occurrence ag it actually takes or 
took place; a physical object or appearance, 
as it actually exists or existed. An actual 
and absolute reality, as distinguished from 
mere supposition or opinion; a truth, as dis- 
tinguished from fiction or error. Burrill, 
Cire. Ey, 218. 


469 


“Fact” is very frequently used in opposi- | 


tion or contrast to “law.” Thus, questions 
of fact are for the jury; questions of faz for 
the court. Soan attorney a faz is an of- 
fiver of the cuurts of justice; an attorney in 


FACTO 


fact is appointed by the written authoriza- 
tion of a principal to manage business affairs 
usually not professional. Fraud ta fact con- 
sists in an actual intention to defrand, car- 
ried into effect; while fraud imputed by faze 
arises from the man’s conduct in its neces- 
sary relations and consequences. 

The word is much used in phrases which con- 
trast it with law. Law is a principle; fact is an 
event. Law is conceived; fact is actual. Law is 
arule of duty; fact is that which has been accord- 
ing to or in contravention of the rule. The dis- 
tiuction is well illustrated in the rule that the ex- 
istence of foreign laws is matler of fact. Within 
the territory of its jurisdiction, luw operates as an 
obligatory rule which judges must recognize and 
enforce; but, in a tribunal outside that jurisdic 
tion, it loses its obligatory force and its claim to 
judicial notice. The fact that it exists, if impor- 
tant to the rights of parties, must be alleged and 
proved the same as the actual existence of any oth- 
er institution. Abbott. 

The terms “fact” and “truth” are often 
used in common parlance as synonymous, 
but, as employed in reference to pleading, 
they are widely different. A fact in plead- 
ing is a circumstance, act, event, or incident; 
a truth is the legal principle which deelares 
or governs the facis and their operative ef- 
fect. Admitting the facts stated in a com- 
plaint, the truth may be that the plaintiff is 
not entitled, upon the face of his complaint, 
to what he claims. The mode in which a 
defendant sets up that truth for his protee- 
tion isa demurrer. 4 E. D. Smith, 37. 

As to the classification of facts, see DIs- 
POSITIvE Facts. 


FACTA. In old English law. Deeds. 
Facta armorum, deeds or feats of arms; that 
is, jousts or tournaments. Cowell. 

Facts. facta et casus, facts and cases. 
Bract. fol. 16. 


Facta sunt potentiora verbis. Deeds 


are more powerful than words. 


Facta tenent multa que fleri prohi- 
bentur. 12Coke, 124. Deeds contain many 
things which are prohibited to be done. 


FACTIO TESTAMENTI. In the civil 
law. The right, power, or capacity of mak- 
ing a will; called “/fuctio activa.” Inst. 2, 
10, 6. 

The right or capacity of taking by will; 
ealled “factio passiva.” Inst. 2, 10, 6. 


FACTO. In fact; by an act; by the act 
or fact. Ipso facto, by the «act itself; by the 
mere effect of a fact, without anything su- 
peradded, or any proceeding upon it te giva 
it effect. 3 Kent, Comm. 55, 58. 


Rt 


FACTOR 


FACTOR. A commercial agent, em- 
ployed by a principal to sell merchandise 
consigned to him for that purpose, for and 
in behalf of the principal, but usually in his 
own name, being intrusted with the posses- 
sion and control of the goods, and being re- 
munerated by a commission, commonly called 
“factorage, ” 

A factor is an agent who, in the pursuit 
of an independent calling, is employed by an- 
other to sell property for him, and is vested 
by the latter with the possession or control 
of the property, or authorized Lo receive pay- 
ment therefor from the purchaser. Civil 
Code Cal. § 2026; Civil Code Dak. § 1168. 

When the agent accompanies the ship, taking a 
cargo aboard, and it is consigued to him for sale, 
and he is to purchase a return cargo out of the 
proceeds, such agent is properly called a “factor.” 
He is, however, usually kuown by the name of a 
“supercargo.” Beaw, Lex. Merc. 44, £7; Liverm. 
Ag. 69, 70; 1 Domat, b. 1, t. 16, § 3, art, 2. 

Factors are called “domestic” or “foreign,” 
according as they reside in the same country 
with the principal or in a different country. 

A “factor” is distinguished from a 
“broker” by being intrusted with the posses- 
sion, management, and control of the goods, 
and by being authorized to buy and sell in 
his own name, as well as in that of his prin- 
cipal. Russ. Fact. 4; Story, Ag. § 33; 2 
Steph. Comm. 127; 2 Barn. & Ald. 187, 1438; 
2 Kent, Comm, 622, note. 

The term is used in some of the states to 
denvte the person who is elsewhere called 
“garnishee” or “trustee.” See fAcTORIZ- 
ING PROCESS. 


FACTORAGE. The allowance or com- 
mission paid to a factor by his principal. 
Russ. Fact. 1; Tomlins. 


FACTORIZING PROCESS. In Ameri- 
ean law. <A process by which the effects of 
a debtor are attached in the hands of a third 
person. A term peculiar to the practice in 
Vermontand Connecticut. Otherwise termed 
“trustee process” and “parnishment.” 
Drake, Attachm, § 451. 


FACTORS’ ACTS. The name given to 
several English statutes (6 Geo. IV. c. 94; 
5 & 6 Vict. c. 39; 40 & 41 Vict. c. 39) by 
which a factor is enabled to make a valid 
pledge of the goods, or of any part thereof, 
to one who believes him to be the bona fide 
owner of the goods. 


FACTORY. In English law. The 
term includes all buildings and premises 
wherein, or within the close or curtilage of 
which, steam, water, or any mechanical pow- 


470 


FACTUM 


er is used to move or work any machinery 
employed in preparing, manufacturing, or fin- 
ishing cotton, wool, hair, silk, flax, hemp, 
jute, or tow. So defined by the statute 7 
Vict. c.15,§73. By later acts this definition 
has been extended to various other manu- 
facturing places. Mozley & Whitley. 

Also a place where a considerable number 
of factors reside, in order to negotiate for 
their masters or employers. Ene. Brit. 


In American law. The word “factory” 
does not necessarily mean a single building 
or edifice, but may apply to several, where 
they are used in connection with each other, 
for a common purpose, and stand together in 
the same inclosure. 45 Ill. 303. 

In Scotch law. This naimeis given toa 
species of contract or employment which falls 
under the general designation of “agency,” 
but which partakes both of the nature of a 
mandate and of a bailment of the kind ealled 
“locatio ad aperandum.” 1 Bell, Comm, 
259, 


“BFACTORY PRICES.” The prices at 
which goods may be bought at the factories, 
as distinguished from the prices of goods 
bought in the market after they have passed 
into the hands of third persons or shop-keep- 
ers. 2 Mason, 90. 


Facts cannot lie. 18 How. State Tr. 
1187; 17 How. State Tr. 1430, 


PACTUM. Lat. In old English law, 
A deed; a person’s act and deed; unything 
stated or made certain; a sealed instrument; 
a deed of conveyance. 

A fact; a circumstance; particularly a fact 
in evidence. Bract. fol. 16. 


In testamentary law. The execution or 
due execution of a will. The factum of an 
instrument means nob barely the signing of 
it, and the formal publication or delivery, 
but proof that the party well knew and un- 
derstood the contents thereof, and did give, 
will, dispose, and do, in all things, as in the 
said will is contained. 11 How. 354. 

In the civil law. Fact; a fact; a mat- 
ter of fact, as distinguished from a matter of 
law. Dig. 41, 2, 1, 3. 

In French law. A memoir which con- 
tains concisely set down the fact on which a 
coutest has happened, the means on which a 
party founds his pretensions, with the refu- 
tation of the means of the adverse party. 
Viecat. 

In old Kuropean law. A portion or al- 
Iotment of land, Spelman. 


TUM A JUDICE QUOD, ETC. 


( tum a judice quod ad ejusa offi- 
m non spectat non ratum est. An 
on of a judge which relates not to his of- 
ais of no forces. Dig. 50, 17,170; 10 Coke, 


_ Factum cuique suum non adversario, 
noceré debet. Dig. 50, 17,155. A party’s 
own det should prejudice himself, not his ad- 
versary.. 


Factum infectum fleri nequit. A thing 
done cannot be undone. 1 Kames, Eq. 96, 
259. 

FACTUM JURIDICUM. A juridical 
fact. Denotes one of the factors or ele- 
ments constituting an obligation. 


Factum negantis nulla probatio sit. 
Cod, 4, 19, 23. There \s no proof incumbent 
upon him who denies a fact. 


“Factum” non dicitur quod non per- 
severat. 5 Coke, 96. That is not called a 
“deed” which does not continue operative. 


PACTUM PROBANDUM. Lat. In 
the law of evidence. The fact to be proved; 
afact which isin issue, and to which evidence 
Isto bedirected. 1 Greenl. Hy. § 13. 


E FACTUM PROBANS. A probative or 
evidentiary fact; a subsidiary or connected 
fact tending toe prove the principal fact in 
issue; a piece of circumstantial evidence. 


Factum unius altcri noceri non debet. 
Co. Litt. 152. The deed of one should not 
hurt another. 


Facultas probationum non est angus- 
tanda. The power of proofs [right of offer- 
ing or giving testimony] is not (o be nar- 
rowed. 4 Inst. 279, 


PACULTIES, COURT OF. In English 
ecclesiastical law. A jurisdiction or tribunal 
belonging to the archbishop. It does not 
hold pleas in any suits, but creates rights to 
pews, monuments, and particular places, and 
modes of burial. It has also various powers 
under 25 Hen. VIII. ec. 21, in granting li- 
censes of different descriptions, as a license 
to marry, a faculty to erect an organ ina 
parish church, to level a church-yard, to re- 
move bodies previously buried. 4 Inst. 337. 


FACULTY. In ecclesiasticallaw. A 
license or authority; a privilege granted by 


the ordinary to a man by favor and indul- | 


gence todo that which by law he may not 
do; ¢. g., to marry without banns, to erect a 
monument in a church, etc, ‘Termes de la 
Ley. 


471 


FAILING OF RECORD 


In Scotch law. A power founded on 
consent, as distinguished from a power 
founded on property. 2 Kames, Eq. 265. 


FACULTY OF A COLLEGE. The 
corps of professors, instructors, tutors, and 
lecturers, To be distinguished from the 
board of trustees, who constitute the corpo- 
ration. 


FACULTY OF ADVOCATES. The 
college or society of advocates in Scotland. 


FADERFIUM. Inold Englishlaw. A 
marriage gift coming from the father or 
brother of the bride, 


FAIDER-FEOH, In old English law. 
The portion brought by a wife to her hus- 
band, and which reverted toa widow, in case 
the heir of her deceased husband refused his 
consent to her second marriage; 7. e., it re- 
verted to her family in ease she returned to 
them. Wharton. 


FASTING-MEN. Approved men who 
were strong-armed; habentes homines or 
rich men, men of substance; pledyes or bonds- 
men, who, by Saxon custom, were bound 
to answer for each other’s good behavior. 
Cowell; Du Cange. 


FAGGOT. A badge worn in popish times 
by persons who had recanted and abjured 
what was then adjudged to be heresy, as an 
emblem of what they had merited. Cowell. 


FAGGOT VOTES. <A faggot vote is 
where a man is formally possessed of a right 
to vote for members of parliament, without 
possessing the substance which the vote 
should represent; as if he is enabled ta buy 
a property, and at the same moment mort- 
gage it to its full value for the mere sake of 
the vote. Such a vote is called a “faggot 
vote.” See? &8 Wm. IL. ¢.25,§ 7. Whar- 
ton. 


FAIDA. In Saxon law. Malice; open 
and deadly hostility; deadly feud. The word 
designated the enmity between the family of 
a murdered man and that of his murderer, 
which was recognized, among the Teutonic 
peoples, as justification for vengeance taken 
by any one of the former upon any one of the 
latter. 

FAIL. The difference between “fail” and 
“refuse” is that the latter involves an act of 
the will, while the former may be an act of 
inevitable necessity. 9 Wheat. 344. 


FAILING OF RECORD. When an 
action is brought against a person who alleges 


a 


FAILLITE 


in his plea matter of record in bar of the ac- 
tion, and avers to prove it by the record, but 
the plaintiff saith nz tiel record, viz., de- 
nies there is any such record, upon which the 
defendant has a day given him by the court 
to bring it in, if he fail to do it, then he is 
said to fail of his record, and the plaintiff is 
entitled to sign judgment. Termes de la 
Ley. 


FAILLITE. InFrenchlaw. Bankrupt- 
ey; failure; the situation of a debtor who 
finds himself unable to fulfill his engage- 
menis. Code de Com. arts. 442, 580; Civil 
Code La. art. 3522, 


FAILURE. In legal parlance, the neg- 
leet of any duty may be deseribed as a “fail- 
ure.” But in the language of the business 
world this term, applied to a merchant or 
mercantile concern, means an inability to pay 
his or their debts, from insolvency, and the 
word must be regarded as synonymous with 
“insolvency.” 1 Rice, 140, 

According to other authorities, “failure,” 
in this sense, means a failure to meet current 
obligations at maturity. Insolvency looks 
to the ability to pay; failure to the fact of 
payment, Failure is the outward act which 
stands for evidence of insolvency. 13 8. C, 
926. See, also, 10 Blatchf. 256; 24 Conn. 
310. 


FAILURE OF CONSIDERATION, 
The want or failure of a consideration sufti- 
cient to support a note, contract, or convey- 
ance. It may be either partial or entire. 


FAILURE OF EVIDENCE. Judi- 
cially speaking, a total “failure of evidence” 
‘means not only the utter absence of all evi- 
dence, but if also means a failure to offer 
proof, either positive or inferential, to estab- 
lish one or more of the many facts, the estab- 
lishment of a2Z of which is indispensable to 
the Gnding of the issue for the plaintiff. 7 
Gill & J. 28. 


FAILURE OF ISSUE. The failure at 
a fixed time, or the total extinetion, of issue 
to take an estate limited over by an executory 
devisa. 


A definite failure of issue is when a precise time 
{g fixed by the will for the failure of issue, as in 
the case where there is a devise to one, but if he 
dies without issue or lawful issue living at the 
time of his death, ete. An indefinite fuilure of 
issue is the period when the issue or descendants 
of the first taker shall become extinct, and when 
there is no longer any issue of the issue of the 
grantee, without reference to any particular time 
or any particular event, 50 Ind. 546. 

Au executory devise to tule effect on an indefi- 


472 


FAIR PLEADER 


nite failure of issue is void for remoteness. and — 
hence courts are astute to devise some construc 
tion which shalirestrain the failure of issue tothe 
term of limitation allowed. 40 Pa, St 18; 2 Redi. 
Wills, 276, note. 


FAILURE OF JUSTICE. The defeat 
of a particular right, or the failure of repa- 
ration for «a particular wrong, trom the lack 
of a legal remedy for the enforcement of Lhe 
one or the redress of the other. 


FATLURE OF RECORD. Failure of 
the defendant to produce a record which he 
has alleged and reliea on in his plea. 


FAILURE OF TITLE. The inability 
or failure of a vendor to make good title to 
the whole or a part of the property which he 
has contracted to sell. 


FAILURE OF TRUST. The lapsing 
or non-efficiency of a proposed trust, by rea. 
son of the defect or insutliciency of the deed 
or instrument creating it, or on account of 
illegality, indefiniteness, or other legal im- 
pediment. 


FAINT (or FEIGNED) ACTION. In 
old English practice. An action was so 
ealled where the party bringing it had no 
title to recover, although the words of the 
writ were true; a false action was properly 
where the words of the writ were false. Litt. 
§ 689; Co. Litt. 361. : 


FAINT PLEADER. A fraudulent, 
false, or collusive manner of pleading to the 
deception of a third person. 


FAIR, nm. In English law. <A greater 
species of market; a privileged market. If 
is an incorpureal hereditament, granted by 
royal patent, or established by prescription 
presupposing a grant from the crown. 


In the earlier English law, the franchise to hold 
a fair conferred certain important privileges; and 
fairs, as legally recognized institutions, possessed 
distinctive legal characteristics. Most of these 
privileges and characteristics, however, are now 
ebsolete. In America, fairs, in the ancient tech- 
nical sense, are unknown, and, in the modern 
aud popular sense, they are entirely voluntary and 
non-legal, and transactions arising in or in con- 
nection with them aresubject to the ordinary rules 
governing sates, etc. 


FAIR, adj. Just; equitable; even-handed: 
equal, as between conflicting interests. 


FAIR-PLAY MEN, A local irregular 
tribunal which existed in Pennsylvania about 
the year 1769, as to which see Serg. Land 
Laws Pa. 77; 2 smith, Laws Pa. 195. 


FAIR PLEADER. See DRAUPLEADER. 


FAIRLY 


AIRLY. Justly; rightly; equitably. 
ubstantial correctness. 

“Fairly” ig not synonymous with “truly,” and 
‘uly" should not be substituted for itin a com- 
issioner’s oath to take testimony fairly. Lan- 
guage may be truly, yet unfairly, reported; that is, 
an auswer may be truly written down, yet in a 
manner conveyiug a different meaning from that 
ntended and conveyed. And language may be 
ft inly reported, yet not in accordance with strict 
truth. 17N. 4 Eq. 234. 


FAIT. L. Fr. Anything done. A deed; 
act; fact. 

A deed lawfully executed. Com. Dig. 
Feme de fait. A wife de facio. 


FAIT ENROLLE. A deed enrolled, as 
a bargain und sale of freeholds. 1 Keb. 568. 


FAIT JURIDIQUE. In French law. 
A juridical fact. One of the factors or ele- 
ments constitutive of an obligation. 


FAITH. 1. Confidence; credit; reliance. 
Thus, an act may be said to be done “on the 
faith” of certain representations. 

2. Belief; credence; trust. Thus, the con- 
stitution provides that “full faith and credit” 
shall be given to the judgments of each state 
in the courts of the others. 

8. Purpose; intent; sincerity; state of 
knowledge or design. This is the meaning 
of the word in the phrases “good faith” and 
“bad faith.” 

In Scotch law. A solemn pledge: an 
| oath. “To make faith” istoswear, withthe 
| ght hand uplifted, that one will declure the 
iruth, 1 Forb. Inst. pt. 4, p. 235. 


FAITOURS. Idle persons; idle livers; 
vagabonds. Cowell; Blount. 


FALANG. Inold Englishlaw. A jack- 
et or close coat. Blount. 


FALCARE. In old English law. To 
mow. Falcare praia, to mow or cul grass 
in meaduws laid in for hay. A customary 
service to the lord by his inferior tenants. 

Jus faleandi, the right of cutting wood. 
Bract. fol. 231. 

_ Faicata, grass fresh mown, and laid in 
swaths. 
Faleatio,amowing. Bract. fols. 356, 230. 
faicailor, a mower; a servile tenant who 
perfortned the labor of mowing. 
Faleatura, a day’s mowing. 


FALCIDIA. In Spanish law. The Fal- 
eidian portion; the portion of an inheritance 
which could not be legally bequeathed away 
from the heir, viz., one-fourth, 


478 


FALDWORTH 


FALCIDIAN LAW. In Romanlaw. A 
law on the subject of testamentary disposi- 
tion, enacted by the people in the year of 
Rome 714, on the proposition of the tribune _ 
Falcidius. By this law, thetestatur's right 
to burden his estate with legacies was sub- 
jected to an important restriction. It pre- 
scribed that no one could bequeath more than 
three-fourths of his property in legacies, and 
that Lhe heir should have at least one-fourth 
of the estate, and that, should the testator 
violate this preseript, the heir may have the 
Tight to make a proportional deduetion from 
each legatec, so far as necessary. Mackeld. 
Rom. Law, § 771; Inst. 2, 22. 


FALCIDIAN PORTION. That por- 
tion of a testator’s estate which, by the Fal- 
cidian law, was required to be left to the 
heir, amounting to at least one-fourth. 


FALD, or FALDA. <A sheep-fold. Cow- 
ell. 


FALDA. Span. 
slope or skirt of a hill. 


In Spanish law. The 


2 Wall. 673. 


FALDZ CURSUS. Inold English law. 
A fold-course; the course (going or taking 
about) of a fold. Spelman. 

A sheep walk, or feed for sheep. 2 Vent. 
139, 


PALDAGEH. The privilege which ancient- 
ly several lords reserved to themselves of set- 
ting up folds for sheep in any fields within 
their manors, the better to manure them, and 
this not only with their own but their ten- 
ants’ sheep. Called, variously, “secta fal- 


dare,” “fold-course,” “free-fold,” “/fulda- 
git.” Cowell; Spelman. 
FALDATA. In old English law. A 


flock or fold of sheep. Cowell. 


FALDFEY. Sax. A fee or rent paid by 
a tenant to his Jord for leave to fold his sheep 
on his own ground. Blount. 


FALDISDORY. In ecclesiastical law. 


| The bishop’s seat or throne within the chan- 


cel. 


FALDSOCA, Sax, 
ilege of foldage. 


The liberty or priv- 


FALDSTOOL. A place at the south side 
of the altar at which the sovereign kneels at 
his coronation. Wharton. 


FALDWORTH. In Saxon law. A per- 
son of age that he may be reckoned of some 
decennary. Du Fresne. 


FALER A 


FALERA®, In old English law. The 
tackle and furniture of a cart or wain. 
Blount. 


FALESTIA. In old Englishlaw. A hill 
or down by the sea-side, Co. Litt. 56; 
Domesday. 


FALK-LAND. See Foic-LAanp. 


FALL. In Scotch law. To lose. 
fall from a right is to lose or forfeit it. 
Kames, Eq. 228. 


To 
i 


FALL OF LAND. InEnglishlaw. A 
quantity of land six ells square superficial 
measure. 


FALLO. InSpanish law. The final de- 
erse or judgment given in a controversy at 
law. 


FALLOW-LAND. Land plowed, but 
not sown, and left uncultivated for a time 
aiter successive crops. 


FALLUM, Inold Englishlaw. Anun- 
explained term for some particular kind of 
land. Cowell. 


FALSA DEMONSTRATIO. In the 
civil law. False designation; erroneous 
description of a person or thing in a written 
instrument. Inst. 2, 20, 30. 


Falsa demonstratio non nocet, cum de 
corpore (persona) constat. [alse descrip- 
tion does not injure or vitiate, provided the 
thing or person intended has once been suf- 
ficiently described, Mere false deseription 
does not make an instrument inoperative. 
Broom, Max. 629; 6 Term, 676; Ll Mees. 
& W. 189; 2 Story, 291. 


Fals2) demonstratione legatum non 
perimi. A bequest is not rendered void by 
an erroneous description. Inst. 2, 20, 30; 
Broom, Max. 645. 


Falsa grammatica non vitiat concessi- 
onem. False or bad grammar doves not 
vitiate a grant. Shep. Touch. 55; 9 Coke, 
48a. Neither false Latin nor false English 
will make a deed void when the intent of the 
parties doth plainly appear. Shep. ‘Touch. 87. 


FALSA MONETA. In the civil law. 
False or counterfeit money. Cod. 9, 24. 


Valsa orthographia non vitiat chartam, 
[concessionem.] False spelling does not 
vitiate adeed. Shep. Touch. 55, 87; 9 Coke, 
45a; Wing. Max. 19. 


FALSARE. In old English law. To 
counterfeit. Quia Salsavit sigillum, be- 


474 


ae 


FALSE JUDGMENT 


cause he counterfeited the seal. Bract. fol. 


2766. 


FALSARIUS. 
Townsh. PI. 260. 


FALSE. Untrue; erroneous; deceitful; 
contrived or calculated to deceive and in- 
jure. Unlawful. 

In law, this word means something more 
than untrue; if means something designedly 
untrue and deceitful, and implies an inten- 
tion to perpetrate some treachery or fraud. 
18 U.C.C. P.19; 7 Amer. & Eng. Ene. Law, 
661. 


FALSE ACTION, See FEranNED Ac 
TION. 


FALSE CHARACTER. Personating 
the master or mistress of a servant, or any 
representative of such master or mistress, 
and giving a false character to the servant, 
is an offense punishable in England witha 
fine of £20. St. 32 Geo. III. c. 56. 


FALSE CLAIM, in the forest law, was 
where a wan claimed more than his due, 
and was amerced and punished for the same, 
Manw. c, 25; Tomlins, 


FALSE FACT. Inthe law of evidence. 
A feigned, simulated, or fabricated fact; a 
fact not founded in truth, but existing only 
in assertion; the deceitful semblance of a 
fact. 


FALSE IMPRISONMENT. The un- 
lawful arrest or detention of a person with- 
out warrant, or by an illegal warrant, or 8 
warrant illegally executed, and either in a 
prison or a place used temporarily for that 
purpose, or by force and constraint without 
conlinement. 

False imprisonment consists in the un- 
lawful detention of the person of another, 
for uny length of time, whereby he is de- 
prived of his personal liberty. Code Ga, 
1882, § 2990; Pen. Code Cal. § 236. 

The term is also used as the name of the 
action which lies for this species of injury. 
3 BL. Comm. 1388, 


FALSE JUDGMENT. In old English 
law. A writ which lay when a false judg- 
ment had been pronounced in @ court not of 
record, as a county court, court baron, etc. 
Fitzh. Nat. Brey. 17, 18. 

in old French law. The defeated party 
ina suit had the privilege of accusing the 
judges of pronouncing a false or corrupt | 
judgment, whereupon the issue was deter- 
mined by his challenging them to the com- | 


A counterfelter. 


ALSE LATIN 


. This was called the “appeal 
s¢ judgment.” Montesq. Esprit des 
liv. 28, c. 27. 


.LSE LATIN. When law proceedings 
written in Latin, if a word were sig- 
though not good Latin, yet an in- 
gent, declaration, or fine should not be 
roid by it; but if the word were not 
tin, nor allowed by the law, and it were 
material point, it made the whole vicious, 
Coke, 121; 2 Nels. 830.) Wharton. 


ALSE LIGHTS AND SIGNALS. 
ts and signals falsely and maliciously 
played for the purpose of bringing a ves- 
into danger. 


FALSE NEWS. Spreading false news, 
Whereby discord may grow between the 
queen of England and her people, or the 
“great men of the realm, or which may pro- 
duce other mischiefs, still seems to be a mis- 
demeanor, under St. 8 Edw. I. ¢. 34. Steph. 
Cr. Dig. § 95. 


FALSE OATH. See Prrsgury. 


FALSE PERSONATION. The crimi- 
hal offense of falsely representing some oth- 
@r person and acting in the character thus 


vantage, or enjoy some right or privilege be- 
Sriging to the one so personated, or subject 
him to some expense, charge, or liability. 
See 4 Steph. Comm. 181, 290. 


FALSE PLEA. See SHAm PLEA. 
FALSH PRETENSES, Incriminal law. 


with a fraudulent design to obtain money, 
goods, wares, or merchandise, with intent to 
cheat. 2 Bouv. Inst. no. 2308. 

A representation of some fact or circum- 
glance, calculated to mislead, which is not 
true. IP Pick, 184. 

False statements or representations made 
with intent to defrand, for the purpose of ob- 
taining money or property. 

A pretense is the holding out or offering to 
others something false and feigned. This may be 
done either by words or actions, which amount to 
faise representations. In fact, false representa- 
tions are iuseparable from the idea of a pretense. 


Without a representation which is false there can 
be no pretense. 43 Iowa, 133. 


| FALSE REPRESENTATION. See 
Fravup; D&cEIT. 


| FALSE RETURN. A return to a writ, 
In which the officer charged with it falsely 
reports that he served it, when he did not, or 


475 


FALSEHOOD 


makes some other false or incorrect state- 
ment, whereby injury results to a person in- 
terested. 


FALSE SWEARING. The misde- 
meanor committed in English law by a per- 
80n who swears falsely before any person au- 
thorized to administer an oath upon a matter 
of public concern, under such circumstances 
that the false swearing would have amounted 
to perjury if committed in a judicial proceed- 
ing; a3 where a person makes a false affidavit 
under the bills of sale acts. Steph. Cr. Dig. 
p. 84. 


FALSE TOKEN. In criminal law. A 
false document or sign of the existence of a 
fact, used with intent toe defraud, for the pur- 
pose of obtaining money or property. 


FALSH VERDICT. An untrue verdict. 
Formerly, if a jury gave a false verdict, the 
party injured by it might sue out and prose- 
cute a writ of attaint against them, either at 
common law or on the statute 11 Hen. VIL. 
e, 24, at his election, for the purpose of re- 
versing the judgment and punishing the 
jury for their verdict; but not where the jury 
erred merely in point of law, if they found 
according to the judge's direction, The 
practice of setting aside verdicts and grant- 
ing new trials, however, so superseded the 
use of attuints that there is no instance of 
one to be found in the books of reports later 
than in the time of Elizabeth, and it was al- 
together abolished by 6 Geo. IV. c. 50, § 60, 
Wharton. 


FALSE WEHIGHTS. False weights and 
measures are such ag do not comply with the 
standard prescribed by the state or govern- 
ment, or with the custom prevailing in the 
place and business in which they are used. 
7 Amer. & Eng. Ene, Law, 796. 


FALSEDAD. In Spanishlaw. Falsity; 
an alteration of the truth. Las Partidas, pt. 
8, tated. 1. 


Deception; fraud. Id. pt. 3, tit. 32, 1. 21. 


FALSEHOOD. A statement or asser- 
tion known to be untrue, and iutended to dv- 
ceive. A willful act or declaration contrary 
tothe truth. 651 .N. H. 207. 

In Seoteh law. A fraudulent imitation 
or suppression of truth, to the prejudice 
of another. Bell. “Something used and 
published falsely.” An old Seottish momen 
juris. “Falsehood is undoubtedly a nom- 
inate crime, so much so that Sir George Mac- 


kenzie and cur older lawyers used no other } 


term for the falsification of writs, and the 


iP) 


FALSI CRIMEN 


name ‘forgery’ has been of modern intro- 
duction.” “If there is any distinction to be 


- made between ‘forgery’ and ‘falsehood,’ I 


would consider the latter to be more compre- 
hensive than the former.” 2 Broun, 77, 78. 


FALSI CRIMEN. Fraudulentsuborna- 
tion er concealment, with design to darken 
or hide the truth, and make things appear 
otherwise than they are. It is committed 
(1) by words, as when a witness swears 
falsely; (2) by writing, as when a person 
autedates a contract; (3) by deed, as selling 
by false weights and measures. Wharton. 
See CriMEN FALst. 


FALSIFICATION. In equity practice. 
The showing an item in the debit of an ac- 
count to be either wholly false or in some 
part erroneous. 1 Story, Eq. Jur. § 525. 


FALSIFY. Todisprove; to prove to be 
false or erroneous; to avoid or defeat; spoken 
of verdicts, appeals, etc. 

To counterfeit or forge; to make some- 
thing false; to give a false appearance toany- 
thing. 

In equity practice. To show, in ac- 
eounting before a master in chancery, that a 
churge has been inserted which is wrong; 
that is, oither whelly false or in some part 
erroneous. Pull. Accts. 162; 1 Story, Eq. 
Jur. § 25. 


FALSIFYING A RECORD. A high 
offense against public justice, punishable in 
England by 24 & 25 Vict. ¢. 98, §§ 27, 28, 
and in the United States, generally, by statute. 


FALSING. In Scotch law. False mak- 
ing; forgery. “Falsing of ervidentis.” 1 
Pite. Crim. Tr. pt. 1, p. 85. 

Making or proving false. 


FALSING OF DOOMS. In Scotch law. 
The proving the injustice, falsity, or errer 
of the doom or sentence of a court. Tom- 
lins; Jacob. The reversal of a sentence or 
judgment, Skene. An appeal. Bell. 


FALSO RETORNO BREVIUM. A 
writ which formerly lay against the sheriff 
who had execution of process for false return- 
ing of writs. Reg. Jud, 438. 


FALSONARIUS. 
feiter. Hov, 424. 


FALSUM. Lat. In the civil law. A 
false or forged thing; a fraudulent simula- 
tion; a fraudulent counterfeit or imitation, 
such as a forged signature or instrument. 
Also falsification, which may be either by 


A forger; a counter- 


476 


FAMILIA EMPTOR 


falsehood, concealment of the truth, or fraud. 
ulent alteration, a3 by cutting out or eras- 
ing part of a writing, 


FALSUS. False; fraudulent; erroneous, 
Deceitiul; mistaken. 


Falsus in uno, falsus in omnibus, 
False in one thing, false in everything. 
Where a party is clearly shown to bave em- 
bezzled one article of property, it is a ground 
of presumption that he may have embezzled - 
others also. 1 Sumn. 329, 356; 7 Wheat. 
333, 


FAMA. Fame; character; reputation; 
report of common opinion. 


Fama, fides et oculus non patiuntur 
ludum. 3 Builst, 226. Fame, faith, and 
eyesight do not suffer a cheat. 


Fama, quce suspicionem inducit, oriri 
debet apud bonos et graves, non quidem 
malevolos et maledicos, sed providas et 
fide dignas personas, non semel sed sex- 
pius, quia clamor minuit et defamatio 
manifestat. 2 Inst. 52. Report, which in- 
duces suspicion, ought toarise from good and 
gravemen; nol, indeed, from malevolent and 
malicious men, but from cautious and eredi- 
ble persons; not only once, but frequently; 
for clamor diminishes, and defamation man- 
ifests. 


FAMACIDEH, A killer of reputation; 4 
Blanderer. 


FAMILIA. In Roman law. A house- 
hold; a family. On the composition of the 
lioman family, see AGNATI; COGNATI; and 
see Mackeld. Rom. Law, § 144. 

Family right; the right or status of being 
the head of a family, or of exercising the 
patria potestas over others. This could be- 
long only toa Roman citizen who was a “man 
in his own right,” (Aomo sué juris.) Macke 


| eld. Rom. Law, §§ 133, 144. 


In old English law. A household; the 
body of household servants; a quantity of 
land, otherwise called “munsa,” sufficient to 
maintain one family. 

In Spanish law. A family, which might 
consist of domestics or servants. It seems 
that a single person owning negroes was the 
“head of a family,” within the meaning of 
the colonization laws of Coahuila and Texas, 
9 Tex. 156. 


FAMILIA® EMPTOR. In Roman law. 
An intermediate person who purchased the 
aggregate inheritance when sold per as et 


FAMILIA ERUISCUND AD 


the Twelve Tables. 
nerely a man of straw, transmitting the 
itance to the heres proper. Brown. 


7 


fILIZ ERCISCUNDA. In Ro- 
An action for the partition of the 
ate succession of a fumilia, where 
evolved upon co-keredes. It was also 
licable to enforce a contribution towards 
necessary expenses incurred on the famil- 
See Mackeld. Rom. Law, § 499. 


FAMILIARES REGIS. Persons of 
king's household. The ancient title of 
» “six clerks” of chancery in England. 
bb, Com. Law, 184; 2 Reeve, Eng. Law, 
), 251. 


| FAMILY, A family comprises a father, 
mother, and children. In a wider sense, it 


Jn one house under one head. In a still 
broader sense, a group of blood-relatives; all 
‘the relations who descend from a common 
ancestor, or who spring from a common 
t. See Civil Code La. art. 3522, no. 16; 9 
Ves. 323. 

A husband and wife living together may 
constitute a “family,” within the meaning 
‘of that word as used in a homestead law. 
(Fla.) 7 South. Rep. 140. 

“Tanily,” in its origin, meant “servants;”" but, 
fa its more modern and comprehensive meaning, it 
signifies a collective body of persons living to- 
gether in one house, or within the curtilage, in 
legal phrase. 81 Tox. 677. 

“Pamily” may mean children, wile and children, 
hlood-relatives, or the members of the domestic cir- 
ele, according to the concection in which the word 
is used. 11 Paige, 159. 

“amily,” in popular aeceptation, includes par- 
ents, children, and seryvants,—all whose domicile 
or home is ordinarily in tne same house and under 
the same management and head. Ina statute pro- 
viding that to gain a setilementin atown one must 
have “supported himself and his family therein” 
for six years, it includes the individuals whom it 
was the right of tne head to control, and his duty 
to support. The wife is a member of the family, 
within such an enactment. 31 Conn. 826. 


FAMILY ARRANGEMENT. A term 
denoting an agreement between a father and 
his children, or between the heirs of a deceased 
father, to dispose of property, or to partition 
jt in a different manner than that which 
would result if the law alone directed it, or 
todiyide up property without administration. 
In tliese cases, frequently, the mere relation 
of the parties will give elfect to bargains 
otherwise without adequate consideration. 
ont, Pr 6/4 1 Pur. & KR. i 


477 


in the process of making a will ' 


FARE 


FAMILY BIBLE. A Bible containing 


This purchaser a record of the births, marriages, and deaths 


of the members of a family. 


FAMILY MEETING. An institution 
of the laws of Loutsiana, being a council of 
the relatives (or, if there are no relatives, of 
the friends) of a minor, for the purpose of 
advising as to his affairs and the administra- 
tion of his property. The family mecting is 
called by order of a judge, and presided over 
by a justice or notary, aud must consist of at 
least five persons, who are put under oath. 


FAMOSUS. In the civil and old English 
law. MNelating to or affecting character or 
reputation; defamatory; slanderous. 


FAMOSUS LIBELLUS. A libelous 
writing, A term of the civil law denoting 
that species of tajuria which corresponds 
nearly to libei or slander. 


FANAL, Fr. In French marine law. 
A large lantern, fixed upon the highest part 
of a vessel’s stern. 


FANATICS. Persons pretending to be 
inspired, and being a general name for Qua- 
kers, Anabaptists, and all other sectaries, 
and faclious dissenters from the Church of 
England, (St. 13 Car. H.¢.6.) Jacob. 


FANEGA. In Spanish law. A measure 
of land varying in dilferent provinces, bit 
in the Spanish settlements in America con- 
sisting of 6,400 square varas or yards. 


FAQUEER, or FAKIR. <A Hindu 
term for a poor man, mendicant; a religious 
beggar. 


FARANDMAN. In Scotch 
traveler or merchant stranger, 


FARDEL OF LAND. In old English 
law. The fourth part of a yard-land. Ney 
says an eighth only, because, according to 
bim, two fardels make a nook, and feur nvoks 
a yard-lind. Wharton. 


law. A 


Skene. 


FARDELLA. In old English law. A 
bundle or pack; a fardel. Fieta, lib. 1, « 
22, § 10. 


FARDING-DEAL. The fourth part of 
an acre of land. Spelman. 


FARE. A voyage or passage by water; 
also the money paid for a passage either by 
land or by water. Cowell. 

The price of passige, or the sum paid or to 
be paid for carrying a passenger. 26 N. Y. 
526. 


FARINAGIUM 


FARINAGIUM. 
or flour. 


A mill: atoll of meal 
Jacob; Spelman. 


FARLEU. Money paid by tenants in lieu 
of a heriof. It was often applied to the best 
chattel, as disLinguished from Heriot, the best 
beast. Cowell. €. 


FARLINGARIL. 
adulterers. 


Whoremongers and 


FARM. <A certain amount of provision 
reserved as the rent of a messuage. Spel- 
man, 

Rent generally which is reserved on a lease; 
when it was to be paid in money, it was 
called “blanche firme.” Spelman; 2 Bl, 
Comm. 42. 

A term, a lease of Jands; a leasehold in- 
terest. 2 Bl.Comm.17; 1 Reeve, Eng. Law, 
801, note. The land itself, let to farm or 
rent. 2 Bl. Comm. 363. 

A portion of land used for agricultural 
purposes, either wholly or in part. 
553; 2 Gin. 238. 

The original meaning of the word was 
“rent,” and by a natural transition it came 


to mean the land out of which the rent is- | 


sued, 


In old English law. A lease of other | 


things than land, as of imposts. There were 
several of these, such as “the sugar farm,” 
“the silk farm,” and farms of wines and cur- 
rants, called “petty farms.” See 2 How. 
State Tr. 1197-1206. 

In American law. ‘“Farm” denotes a 
tract of land devoted in part, at least, to eul- 
tivation, for agricultural purposes, without 
reference to its extent, or to the tenure by 
which it is held. 2 Bin. 238. 


FARM LET. Operative worda in a 
lease, which strictly mean to let upon pay- 
ment of a certuin rent in farm; i. ¢., in agri- 
cultural produce. 


FARM OUT. To let for a term ata 
stited rental. Among the Romans the col- 
lection of revenue was farmed out, and in 
England taxes and tolls sometimes are. 


FARMER. 1. Thelesseeofafarm. Itis 
said that every lessee for life or years, al- 
though it be but of a small house and land, 
is called “farmer.” This word implies no 
mystery, except it be that of husbandman, 
Cunningham; Cowell. 

2. A husbandman or agriculturist; one 
who cultivates a farm, whether the land be 
hia own or another's. 


18 Pick. | 


478 


FATHER 


public revenues, taxes, excise, etc,, for a 
certain commission or percentage; as a farm- 
er of the revenues. 


FARO. An unlawful game of cards, In 
which all the other players play against the 
banker or dealer, staking their money upon 
the order in which the cards will lie and be 
dealt from the pack. Webster, 


FARRAGO LIBELLI. Lat. An ill-com- 
posed book containing a collection of miscel- 
lanecus subjects not properly associated nor 
scientifically arranged. Wharton. 


FARRIER. One whose business is to 


| shoe horses jor all such as apply to him, 


FARTHING. 
glish penny. 

FARTHING OF GOLD. An ancient 
English coin, containing in value the fourth 
part of a noble. 


FARYNDON INN. The ancient sap- 
pellation of Serjeants’ Inn, Chancery lane, 


FAS. Lat. Right; justice; the divine 
law. 8 Bl. Comm. 2; Calvin. 


FASIUS. A faggot of wood. 


FAST. In Georgia, a “fast” bill of exeep- 
tions is one which may be taken in injune 
tion suits and similar cases, at auch time and 
in such manner a8 to bring the case up for 
review with great expedilion. It must be 
certified within twenty days from the render- 
ing of the decision. 66 Ga. 353. 


FAST-DAY. <A day of fasting and pen- 
itence, or of mortification by religious absti- 
nence, See 1 Chit. Archb. Pr. (12th Ed.) 160, 
et seq. 


FAST ESTATE. Real property, A 
term sometimes used in wills. 6 Jolns. 185; 
ON. ¥. 502, 


FASTERMANS, or FASTING-MEN. 
Men in repute and substance; pledges, sure- 
lies, or bondsmen, who, according to the 
baxon polity, were fast bound to answer for 
euch other's peaceable behavior. Enc. Lond, 


FASTI, InRomanlaw. Lawful. Dies 
fasti, lawful days; days on which justice 
could lawfully be administered by the praator. 
See Digs Fast. 


The fourth part of an En- 


Fatotur facinus gui judicinm fugit. 
3 Inst. 14. He who flees judgment confesses 
his guilt. 


FATHER. The male parent. He by 


$. One who assumes the collection of the | whom a child is begotten. 


if 


lf 


= 


FATHER-IN-LAW 


479 


FAVORES AMPLIANDI SUNT 


PATHER-IN-LAW. The father of | Slight fault is that want of care which a pru- 


one's wife or husband. 


FATHOM, A nautical measure of six feet 
In length, 


FATUA MULIER. Awhore. Du 
Fresne. 


FATUITAS. In old English law. Fa- 
tuity; idiocy. Reg. Orig. 266. 


FATUITY. Mental weakness; foolish- 
ness; imbecility; idiocy, 


FATUM. Lat. Fate; a superhuman 
power; an event or cause of loss, beyond hu- 
man foresight or means of prevention. 


FATUOUS PERSON. One entirely 
destitute of reason; és gut omnino desipit. 
Ersk. Inst. 1, 7, 48. 


FATUUS. An idiot or fool. 
4208, 

Foolish; absurd; indiscreet; or ill consid- 
ered. Jfatuwm judicinm, a foolish judgment 
or verdict. Applied to the verdict of a jury 
which, thougi false, was not criminally so, 
or did not amount to perjury. LBract. fol. 
280. 


Fatuus, apud jurisconsultos nostros, 
accipitur pro non compos mentis; et 
fatuus dicitur, qui omnino desipit. 4 
Coke, 128. Fatuous, among our juriscon- 
sults, is understood for a man not of right 
mind; and he is called “fatwus” who is al- 
together foolish. 


Bract. fol. 


Fatnuus presumitur qui in proprio 
homine errat. A man is presumed to be 
simple who makes a mistake in his own name, 
Code, 6, 24, 14; 5 Johns. Ch. 148, 161. 


FAUBOURG. In French law, and in 
Louisiana. <A cistriet or part of a town ad- 
joining the princ’pal city; a suburb, See 18 
La. 286. 


FAUCKHS TERRA. (Jaws of the land.) 
Narrow headlands and promontories, inclos- 
ing a portion or arm of the sea within them. 
1 Kent, Comm. 367, and note; Hale, De Jure 
Mur. 10; 1 Story, 251, 259. 


FAULT. Inthe civil law. Negligence; 
wat of care, An improper act or omission, 
injurious to another, and transpiring through 
negligence, rashness, or ignorance. 

There are in law three degrees of faults,— 
the gross, the slight, and the very slight 
fault. The gross faultis that which proceeds 
from inexcusable negligence or ignorance; il 


| 


dent man usually takes of his business. The 
very slight fault is that which is excusable, 


_ and for whieh no responsibility is incurred, 


Civil Code La. art. 3556, par. 13. 


FAUTOR. In old English law. A 
favorer or supporter of others; an abettor. 
Cowell; Jacob. <A partisan. One who en- 
couraged resistance to the execution of pro- 
cess, 


In Spanish law. Accomplice; the per- 
gon who aids or assists anotier in the com- 
mnission of a crime. 


FAUX. In old English lew. Falso; 
counterleit. Faux action, a false action. 
Litt. § 688. Faue money, counterfeit mon- 
ey. St. Westm.1,¢.15. Faux peys, false 
weights. Britt. ec. 20. Faux serement, a 
false oath. St. Westm. 1, c. 38. 


In French law. A faisification or fraud- 
ulent alteration or suppression of a thing by 
words, by writings, or by acts without either 
Biret. 


“Fauxcmay be waderstood in three ways. In its 
most extended sense it is the alteration of truth, 
with or withont intention; it is nearly aynony- 
mous with ‘lying.’ In a less extended sense, it is 
the alteration of truth, accompanied with fraud, 
matitio veritatis cum doto facta. And lastly, in 
a narrow, or rathor the legal, sense of the word, 
when itis aquestion to know if the faux baa crime, 
it is the fraudulent alicrution of the truth in those 
cases ascertained and puaished by the law.” Tou- 
lier, t. 9, n. 188. 


In the civil law. The frardulent alter- 
ation ofthe truth. Thesame with the Latin 
Salsum or crimen falsi. 


FAVOR. 
udice. 


Bias; partiality; lenity; prej- 
See CHALLENGE. 


Favorabilia in lege sunt fiscus, dos, 
vita, libertas. Jenk. Cent. 94. Things 
favorably considered in law are the treasury, 
dower, life, liberty. 


Favorabiliores rei, potius quam ac- 
tores, habentur. The condition of the de- 
fendant must be favored, rather than that of 
the plaintiff. In other words, melior est 
conditio defendertis, Dig. 50, 17, 125; 
Broom, Max. 715. 


Favorabilicres sunt executiones aliis 
processibus quibuscunque. Co. Litt. 289. 
Executions are preferred to all other pro- 
cesses whatever. 


odia re- 
Jenk. Cent. 186. Favora are 


Favores ampliandi sunt; 
stringenda. 


ig considered as nearly equal to fraud. The | to be enlarged; things hateful restrained. 


FEAL 


FHAL Faithful. 
servies swore to their lords to be feai and 
teal; t. e., faithful and loyal. 


FEAT, AND DIVOT. A right in Scot- 
land, similar to the right of turbary in Eng- 
jJand, for fuel, ete. - 


FEALTY. In feudal law. Fidelity; ai- 
legiance to the feudal lord of the manor; the 
feudal obligation resting upon the tenant or 
vassal by which he was bound to be faithful 
and true to his lord, and render him obedi- 
ence and service. ‘ 

Fealty signifies fidelity, the phrase “feal and leal” 
meaning simply “faithful aud loyal.” Tenants 
by knights’ service and also tenants in socage were 
required to take an oath of fealty to the king or 
others, their immediate lords; and fealty was oue 
of the conditions of their tenure, the breach of 


which operated a forfciture of their estates. 
Brown, 

Although forsigu jurists consider fealty and 
homage a3 convertible terms, because in some con- 
tinental countries they are blended so as to form 
one engagement, yet they are not to be confounded 
in our country, for they do not imply the same 
thing, homaye belug the acknowledgment of ten- 
ure, and fealty, the vassal oath of fidelity, beiug 
the essential feudal bond, and the animating prin- 
ciple of a feud, without which it could not subsist. 
Wharton. 


FERAR. Apprehension of harm. 
Apprehension of harm or punishment, as 
exhibited by outward and visible marks of 


emotion. An evidence vf guilt in cerlain 
cases. See Burril, Cire. Ev. 476. 


FEASANCEH. A doing; the doing of an 
act. 

A making; the making of an indenture, 
release, or obligation. Litt. § 371; Dyer, 
(Fr, Ed.) 56. ‘The making of a statute. 
Keilw. 1b, 


FRASANT. Doing, or making. 


FRASOR. Doer; maker. 
esictute, makers of the statute. 


Feasors del 
Dyer, 38. 


FEASTS. Certain established festivals 
er holidays in the ecclesiastical ealendar. 
These days were anciently used as the dates of 
legal instruments, and in England the quar- 
ter-days, for paying rent, are four feast-days, 
The terms of the courts, in England, before 
1875, were fixed to begin on certain days 
determined with reference to the occurrence 
of four of the chief feasts. 


FECIAL LAW. The nearest approach to 
a sysiem of international law known tothe an- 
elent world. It was a branch of Roman ju- 
Tisprudence, concerned with ambassies, dec- 
larations of war, and treaties of peace. It 


480 


Tenants by knight | received this name from the feciales, (q. 0.4) 


FEDERAL GOVERNMENT 


who were charged with its administration. 


FECIALES. Among the ancient Ro- 
mans, that order of priests who discharged 
the duties of ambassadors. -Subsequently 
their duties appear to have related wore par- 
ticularly to the declaring war and peace. 
Calvin.; 1 Kent, Comm. 6, 


FEDERAL, In constitutional law. A 
term commonly nsed to express a league or 
compact between two or more states. 

In American law. Belonging to the 
general government or union of the states, 
Founded on or organized under the conati- 
tution or laws of the United States. 

The United States has been generally styled, tn 
American political and judicial writings, a “fed- 
eral goverument.” The term has not been im. 
posed by any specific constitutional authority, but 
ouly expresses the general sense and opinion upor 
the nature of the form of goverument. In recem 
years, there is observable a disposition to employ 
the term “national” in speaking of the government 
of the Union. Neither word settles anything as 
to the nature or powers of the vovernment. “Fad. 
eral” is somewhat more appropriate if the govern. 
ment is considered a union of the states; “nation- 
al” is preferable if the view is adepted that the 
state governments aud the Union are two distinct 
systems, each established by the people directly, 
one for local and the other for nutional purposes. 
See 92 U. S. 542; Abbott. 


FEDERAL GOVERNMENT. The 
aystem of government administered in a 
state formed by the union or confederation 
of several independent or quasi independ- 
ent states; also the composite state so 
formed. 

In strict usage, there is a distinction be- 
tween a confederativn and a federal govern- 
ment. The former term denotes a league 
or permauent alliance between several states, 
each of which is fully sovereign and in- 
dependent, and each of which retains ils 
full dignity, organization, and sovereignty, 
though yielding to the central! authority a 
controlling powerfer a few limited purposes, 
such as external and diplomatic relations, 
In this case, the component states are the 
units, with respeet to thea confederation, and 
the central government acts upon them, not 
upon the individual citizens. In a federad 
government, on the other hand, the allied 
states form a unijion,—not, indeed, to such 
an extent as to destroy their separate organ- 
ization or deprive them of guast sovereignty 
with respect to the administration of their 
purely loeal concerns, but so that the central 
power is erected into u true state or nation, 
possessing sovereignty both external and in- 


h 
hile the administration of national 
rs is directed, and its effects felt, not by 
separate states deliberating as units, but 
e people of all, in their collective eapaci- 
as citizens of the nation. The distine- 
is expressed, by the German writers, 
the use of the two words “Staatenbund” 
l “Bund-sstaat;” the former denoting a 
rue or confederation of states, and the 
fer a federal government, or state formed 
y means of a league or confederation. 


FEE 


FEE. 1. A freehold estate in lands, held 
of a superior lord, as a reward for services, 
and on condition of rendering some servicein 
return forit. ‘Lhe true meaning of the word 
“fee” is the same as Lhat of “feud” or “fief,” 
and in its original sense it is taken in con- 
tradistinction to “allodium,” which latter is 
defined ag a man’s own land, whieh he pos- 
sesses merely in his own right, without ow- 
ing any rent or service to any superior. 2 
Bl. Comm. 105. See 1 N. Y. 491. 


anestate of inheritance, being the highest 


simply, without any adjunct, or in the form 
“fee-simple,” it imports an absolute inher- 
itance clear of any condition, limitation, or 
restriction to particuliar heirs, but descend- 
ible to the heirs general, male or female, lin- 
eal or collateral, 2 BI. Comm. 106. 

In modern English tenures, a fee signities an es- 
tate of inheritance, and a fee-simple imports an 
absolute inheritance, clear of any condition or lim- 
itation whatever, and, when not disposed of hy 
will, descends to the heirs generally. There are 
: also limited fees: (1) Qualified or base fees ; and (2) 
f feas conditional at the common law. A base fee 
i was confined to a person as tenant of a particular 


place. A conditional fee was restrained to par- 
ticular heirs, as to the heirs of aman’s body. 11 
} Wend, 259, 277. 

A determinable fee is one which may pos- 
silly continue indefinitely, but which is liable 
to be determined. Plowd. 557. 

A qualified (or base) fee is one which has 
a qualification subjoined thereto, and which 
must be determined whencver the qualifica- 
tion annexed to itis atan end. 2 Bl. Comm. 
109. 

A conditional fee,lut the common law,was 
a fee restrained to some particular heirs ex- 
clusive of others. These afterwards became 
estules tail. 2 Bl. Comm. 110. 

2. The word “fee” is also frequently used 
to denote the land which is held in fee. 

8. The compass or circuit of a manor or 
lordship. Cowell. 

AM. dIUt, LAW—3l 


In modern English tenures, “fee” signifies | 


and most extensive interest which a mancan | 
have in a feud; and when the term is used | 


481 


FEE-SIMPLE 


4. In American law. A fee fa an estate 
of inheritance without condition, belonging 
to the owner, and alienable by him, or trans- 
missible to his heirs absolutely and simply. 
It is an absolute estate in perpetuity, and the 
largest possible estate a man can have, being, 
in fact, allodial in its nature. 

5. A reward or wages given to one for 
the execution of his office, or for professional 
services, as those of a counsellor or physi- 
cian. Cowell. 


FEE-BILL. <A schedule of the fees to be 
charged by clerks of courts, sheriffs, or other 
otficers, for each particular service in the line 
of their duties. 


YEE EXPECTANT. An estate where 
lands are given to a man and his wife, and 
the heirs of their bodies. 


FEE-FARM. ‘This isa species of tenure, 
where land is held of another in perpetuity 
at a yearly rent, without fealty, homage, or 
other services tian suchas are specially com- 
prised in the feofiment. It corresponds very 
nearly to the “emphyteusis” of the Roman 
law. 

Fee-farm is where an estate in fee is granted 
subject to a rent in fee of at least one-fourth of the 
value of the lands at the time of its reservation. 
Such rent appears to be called “fee-farm” because 
a grant of.lands reserving so considerable a rent 
is indeed only letting lands to farm in fee-simple, 
instead of the usual method of life or years. 2 Bi. 
Comm. 48; t Steph, Comm. 676. 

Fee-farms are lands held in fee to render for 
them annually the true value, or more or less; so 
called because a farm rent is reserved upon agrant 
in fee. Such estates are estates of inheritance. 
They are classed among estates in fee-simple. No 
reversionary interest remains in the lessor, and 
they are therefore subject to the operation of the 
legal principles which forbid restraints upon alien- 
ation in all cases where no feudal relation exists 
between grantor and grantee. 6 N. Y. 467, 497. 


FRE-FARM RENT. The rent reserved 
on granting a fee-farm. It might be one- 
fourth the value of the land, aceording to 
Cowell; one-third, according to other authors. 
Spelman; Termes de la Ley; 2 Bl. Comm. 43. 

Fee-farm rent is a rent-charge issuing out of an 
estate in fec; a perpetual rent reserved on a con- 
veyanee in fee-simple. 6 N. Y. 467, 495. 

FEE-SIMPLE. In Hnglish law. A 
freeliold estate of inheritance, absolute and 
unqualified. It stands at the head of estates 
as the highest in dignity and the most ample 
in extent; since every other kind of estate is 
derivable thereout, and mergeable therein, 
tor omme majus continet in se minus. Lt 
may be enjoyed not only in land, but also in 
alvowsons, commons, estovers, and other 


FEE-SIMPLE 


hereditaments, as well as in personalty, as an 
annuity or dignity, and also in an upper 
chamber, though the lower buildings and soil 
belong to another. Wharton. 


In American law. An absolute or fee- 
simple estate isone in whieh: the owner is en- 
titled to the entire property, with uncondi- 
tional power of disposition during his life, 
and deseending to his heirs and legal repre- 
sentatives upon his death intestate. Code 
Ga. 1882, § 2246. 

Foe-simple signifies a pure fee; an absolute es- 
tate of inheritance; that which a person holds in- 
hecitable to him and his heirs general forever. It 
is called “fce-simple,” that is, “pure,” because 
clear of any condition or restriction to particular 
heirs, being descenclible to the heirs general, 
whether male or female, lineal or collateral. It is 
the largest estate and most extensive interest that 


can be enjoyed in land, being the entire property | 


therein, und it confers an ublimited power of aliena- 
tion. 42 Vt. 656. 

A fee-simple is the largest estate known to the 
law, and, where no words of qualification or lim- 
itation are added, it means an estate in possession, 
and owned iu severalty. It is uudoudtedly true 
that a person may own a remainder or reversion 
infee. But such an estate is nota fee-simple; it 
is a fee qualified or limited. So, when a person 
owns in common with another, he does not own 
the entire fee,—a fee-simple; it is a fee divided or 
shared with another. 54 Me. 426. 


FEE-SIMPLE CONDITIONAL. This 
estate, af the common law, was a fee re- 
sirained to some particular heirs, exclusive 
of others. But the statute De Donis con- 
verted all such into estates tail. 2 Bl. Comm. 
110. 


FEE-TAIL. An estate tail; an estate of 
inheritance given to a man and the heirs of 
his body, or limited to certain classes of par- 
ticular heirs. It corresponds to the feudwm 
talliatum of the feudal law, and the idea is 
believed to have been berrowed from the Ro- 
man law, where, by way of jidei commissa, 
lands might be entailed upon children and 
freedmen and their descendants, with restric- 
tions as to alienation. 1 Washb. Real Prop. 
*66. 

FEED. Yo lend additional support; to 
strengthen ex post facto. “The interest 
when it acerues feeds the estoppel.” 5 Mood. 
& R. 202. 


FEGAWNGI. Inold Englishlaw. A 
thief caught while escaping with the stolen 
goods in his possession. Spelman. 


FEHMGSRICHTE. The name given 
to certain secret tribunals which flourished 
in Germany from theend of the twelfth cen- 
tury to the middle of the sixteenth, usurping 


482 


‘many of the funetions of the government 


FELLOW-SERV ANTS 


which were too weak to maintain law and 
order, and inspiring dread in all who cam 
Within their jurisdiction. Ene. Brit. Such 
a court existed in Westphalia (though with 
greatly diminished powers) until finally sup. 
pressed in 1811. 


FEIGNED ACTION. In practice. An 
action brought on a pretended right, when 
the plaintiff has no true cause of action, for 
some illegal purpose. In a feigned action 
the words of the writ are true. It differs 
from false action, in which case the words 
of the writ are false. Co. Litt. 361. 


FEIGNED DISHASES. Simulated mal- 
adies. Diseases are generally feigned from 
one of three causes,—fear, shame, or the 
hope of gain. 


FEIGNED ISSUE. An issue made up 
by the direction of a court of equity, (or by 
consent of parties,) and sent to a common- 
law court, for the purpose of obtaining the 
verdict of a jury on some disputed matter of 
fact which the court has not jurisdiction, or 
is unwilling, to decide, It rests upon a sup- 
posititious wager between the parties. See3 
Bl. Comm. 452. 


FELAGUS. In Saxonlaw. One bound 
tor another by oath; a sworn brother. A 
friend bound in the decennary for the good 
behavior of another. One who took the jlave 
of the deceased. ‘Thus, if a person was mur- 
dered, the recompense due from the murderer 
went to the felagus of the slain, in default 
of parents or Jord. Cunningham. 


FELD. A field; 
Blount, 


FELE, FEAL. 
FEAL. 


FELLOW. A companion; one with 
whom we consort; one joined with another 
in some legal status or relation; a member of 
a coliege or corporate body. 


FELLOW-HEIR. <A co-heir; partner of 
the same inheritance. 


FELLOW-SERVANTS. “The decided 
weight of authority is to the effect that all 
who serve the same master, work under the 
same control, derive authority and compen- 
sation from the same common source, and are 
engaged in the same general business, though 
it may be in different grades or departments 
of it, are fellow-servants, who take the risk 
of each other’s negligence.” 2 Thomp, Neg. 
p- 1026, § 31. 


in composition, wild. 


L. Fr. Faithful. See 


OW-SERVANTS 


2 are employed under the same mas- 
authority and compensation from the 
on agurce, and are engaged in the same 
ess, although one is a foreman of tie 
the other a common laborer, are feilow- 
76 Me. 143. 

two servants are employed by the same 
Mabor under the same control, derive their 
and receive their compensation from a 
n source, and are engaced in the same busi- 
though in different departments of the com- 
service, they are fellow-servants. 62 Tex. 


HELO DE SE. A felon of himself; a 
de or murderer of himself. One who 
iberately and intentionally puts an end to 
wn life, or who commits some unlawful 
wlicious act which results in his own 


PELON. One who has committed feiony; 
one convicted of felony. 


FELONIA. Felony. The act or offense 
by which a vassal forfeited his fee, Spelman; 

ik Pe; feloniam, with a eriminal in- 
Co. Litt. $91. 


Felonia, ox vi termini significat quod- 
et capitals crimen felleo animo per- 
petratum. Co, Litt. 891. Felony, by force 
of the term, signifies any capital crime per- 
rated with a malignant mind. 


Felonia implicatur in qualibot pro- 
ditione. 3 Inst. 15. Felony is implied in 
every treason. 


FELONICEH. Feloniously. Anciently 
an indispensable word in indictments for 
felony, und classed by Lord Coke among 
those voces artis ( words of art) which cannot 
be expressed by any periphrasis or circumlo- 
tution. 4 Coke, 39; Co. Litt. 30l@; 4 BI. 
Comin. 307. 


FELONIOUS HOMICIDE. In crimi- 
tallaw. The offense of killing a human 
creature, of any age or sex, without justifi- 
cation or excuse. Tlisre are two degrees of 
this offense, manslaughter and murder. 4 
Bl. Comm. 188, 190; 4 Steph. Comm. 108, 
igh 


FELONIOUSLY. An _ indispensable 
word in modern indictments for felony, as 
felonice was in the Latin forms. 4 Bl, 
Comm. 307. 


FELONY. In Englishlaw. This term 
meant originaliy the state of having forfeit- 
ed Jands and goods to the crewn upon con- 
Viction for certain offenses, and then, by 
transition, any offense npon conviction for 
| which such forfeiture followed, in addition 


———_ 


483 


FEME SOLE 


toany other punishment prescribed by law; 
as distinguished from a “misdemeanor,” 
upon eonviction for which no forfeiture fol- 
lowed. All indictable offenses are either 
felonies or misdemeanors, but a material 
part of the distinetion is taken away by st. 
33 & 34 Vict. ce, 23, which abolishes forfeit- 
ure for felony. Wharton. 

In American law. The term hasno very 
definite or precise meaning, except in some 
cases where itis defined by statute. For the 
most part, the state laws, in describing any 
particular offense, declare whether or not it 
shall be considered a felony. Apart from 
this, the word seems merely to imply a crime 
of a graver or more atrocious nature than 
those designated as “misdemeanors.” 

The stulutes or codes of several of the 
states deline felony as any public offense on 
conviction of which the offender is liable to 
be sentenced to death or to imprisonment in 
a penitentiary or state prison. Pub. St. 
Mass. 1582, p. 1290; Code Ala. 1886, § 3701; 
Code Ga. 1882, § 3404; 34 Ohio St. 301; 1 
Wis. 188; 2 Rev. St. N. Y. p. 587, § 30; 1 
Park. Crim. R. 39. 

In teudallaw. An act or offense on the 
part of the vassal, which cost him his fee, 
or in consequence of whieh his fee fell into 
the hands of his lord; that is, became jor- 
feited. (See Frponta.) Perfidy, ingrati- 
tude, or disloyalty to a lord. 


FELONY ACT. The statute 33 & 34 
Vict. c, 23, abolishing forfeitures for felony, 
and sanctioning the appointment of interim 
eurators and administrators of the property 
of felons. Mozley & Whitley; 4 Steph. 
Comm, 10, 459, 


FELONY, COMPOUNDING OF. Sea 
CoMPOUNDING FELONY. 


FEMALE. Thesex which conceives and 
gives birth to young, Also a member of 
sucli sex, 


FEME. L. Fr. A woman. In the phrase 


“baron ef feme” 
sense of “wife.” 


(qg. 0.) the word has the 


FEME COVERT. A married woman. 
Generally used in reference to the legal dis- 
abilities of a married woman, 43 compared 
with the condition of a feme sole. 


FEME SOLE. A single woman, inclod- 
ing those who have been married, but whose 
marriage bas been dissolved by death or di- 
voree, and, for most purposes, those women 


| who are judicially separated from their ius 


M 


FEME SOLE TRADER 


bands. 
250. 


FEME SOLE TRADER. In English 
law. A married woman, who, by the cus- 
tom of London, trades on her own account, 
independently of her husband; so called 
because, with respect to her trading, she is 
the same as a jeme sele. Jacob; Cro. Car. 
68. 

The term is applied also to women desert- 
ed by their husbands, who do business as 
femes sole. 1 Pet. 105. 


FEMICIDE. The killing of a woman. 
Wharton. 


FEMININE. Of or pertaining to fe- 
males, or the female sex, 


FENATIO. In forest law. 
ing of deer; the fawning season. 


Mozley & Whitley; 2 Steph. Comm. 


The fawn- 
Spelman. 


FENCE, vt. In old Scotch law. To de- 
fend or protect by formalities. To “fence a 
court” was to open it in due form, and inter- 
dict all manner of persons from disturbing 
their proceedings. This was called “fenc- 
ing,” g.d., defending or protecting the court. 


FENCH, n. <A hedge, structure, or par- 
tition, erected for the purpose of inclosing a 
piece of land, or to divide a piece of land into 
distinct portions, or to separate two contig- 
uous estates. See 63 Me. 308; 77 Ill. 169. 


FENCE-MONTH,or DEFENSE- 
MONTH. In old English law. A period 
of time, occurring in the middle of summer, 
during which it was unlawful to hunt deer 
In the forest, that being their fawning sea- 
son. Probably so called because the deer 
were then defended trom pursuit or hunting. 
Manwood; Cowell. 


FENERATION. Usury; tlhe gain of in- 
terest; the practice of increasing money by 
lending. 


FENGELD. In Saxon law. A tax or 
imposition, exacted for the repelling of en- 
emies. 

FENIAN. A champion, hero, giant, 
This word, in the plural, is generally used to 
signify invaders or foreign spoilers. ‘The 
modern meaning of “fenian” is a member of 
an organization of persons of Irish birth, 
resident in the United States, Canida, and 
elsewhere, having for its aim the overthrow 
of inglish rule in Ireland. Webster, (Supp.) 


FEOD. Thesame as feud or fief, being 
the right which the vassal had in land, or 


484 


Jord. Spel. Feuds & Tenures. 


FEODUM 


some immovable property of his lord, to use 
the same and take the profits thereof, render- 
ing unto the lord such duties and services a3 
belonged to the particular tenure; the actual 
property in the soil always remaining in the 


FEODAL. Belonging to a fee or feud; 
feudal. More commonly used by the old 
writers than feudal. 


FEODAL ACTIONS. Real actions; so 
called in the old books, as originally relating 
to feoda, fees, or estatesinland. Mirr.c. 
§ 6; 3 Bi. Comm. 117. 


FEODAL SYSTEM. See Freupar Sys 
TEM. 


FEODALITY. Fidelity or fealty. 
Cowell. See FEALTY. 


FEODARUM CONSUETUDINES. The 
customs of feuds. The nameof acompilation 
of feudal laws and customs made at Milanin 
the twelfth century. It is the most ancient 
work on the subject, and was alwaya re- 
garded, on the continent of Europe, a3 pos 
sessing the highest authority. 


FEODARY. An ofiicer of the court of 
wards, appointed by the master of that court, 
under 52 Hen. VIII. c. 26, whose business it 
was Lo be present with the escheator in every 
county at the finding of offices of lands, and 
to give evidence for the king, as well con- 
cerning the value asthe tenure; and his office 
was also tosurvey lhe land of the ward, after 
the office found, and to rate it. He also as- 
signed the king’s widows their dower; and 
received all the rents, etc. Abolished by 12 
Car. If. ¢.24. Wharton. 


FEODATORY. In feudal law. The 
grantee of a feod, feud, or fee; the vassal or 
tenant who held lis estate by feudal service, 
Termes de la Ley. Blackstone uses “/euda- 
tory.” 2 Bl. Comm. 46. 


FEODI FIRMA. 
Fee-farm, (g. 0.) 


FEODI FIRMARIUS. The lessee of a 
fee-farm. 


FEODUM. This word (meaning a feud 
or fee) is the one most commonly used by the 
older English law-writers, though ils equiva- 
lent, “feudum,” is used generally by the 
more modern writers and by the feudal law- 
writers. Litt. § 1; Spelman, There were 
various classes of feoda, among which may 
be enumerated the foliowing: Feodum lat- 
cum,alayiee. Feodum mititare, a knight's 


In old English law. 


improprium, an improper or 
Feodum proprium, & proper 
tl fee, regulated by the strict rules 
succession and tenure. Neodum 
» a simple or pure fee; fee-simple. 
talliatum, a fee-tail. See 2 BI. 
58, 62; Litt. §§ 1,13; Bract. fol. 175; 
13, 23. 
old English law. A seigniory or ju- 
Fleta, lib. 2, c. 63, § 4. 
‘A fee; « perquisite or compensation for a 
jee. Fleta, lib. 2, c. 7. 


0 4 


; FEODUM ANTIQUUM. A feud which 
levolyed upon a vassal from his intestate an- 
—. 

Feodum est quod quis tenet ex qua- 
 eunque causa sive sit tenomentum sive 
reditus. Co. Litt. 1. <A fee is that which 
auy one holds from whatever cause, whether 
tenement or rent. 


FEODUM NOBILE. A fief for which 
the tenant did guard and owed homage. Spel- 
man. 


FEODUM NOVUM. 
by a vassal himself. 


A feud acquired 


Feodum simplex quia feodum idem 
est quod hereditas, et simplex idem est 
quod legitimum vel purum; et sic feo- 
dum simplex idem est quod hereditas 
legitima vel hereditas pura. Litt. § 1. 
A fee-simple, socalled because fee is the same 
as inheritance, and simple is the same as 
lawful or pure; and thug fee-simple is the 
same as a lawfnal inheritance, or pure inher- 
itance. 


Feodum talliatum, i. e., hereditas in 
quandam certitudinem limitata. Litt. 
§ 13. Fee-tail, 7. e., an inheritance limited 
in a definite descent. 


FEOFFAMENTUM.,. 
Bl. Comm, 310. 


FEOFPARE. ‘To enfeoff; to bestow a 
fee. The bestower was called “feoffator,” 
and the grantee or feoffee, “feaffatus.” 


A feofiment. 2 


FEOFFATOR. In old English law. A 
feoitor; one who gives or bestows a fee; one 
who makes a feoffment. Brict. fols. 120, 81. 


FHOFFATUS. In old English law. A 
teofiee; one to whom a fee is given, ora feoff- 
ment made. Bract. fols. 17, 440. 


FEOFFER. He to whem a fee is con- 
i) veyed. Litt. § 1; 2 Bl. Comm. 20. 


485 


FERCOSTA 


FEOFFEE TO USES. A person to 
whom land was conveyed for the use of a 
third party. The latter was called “cesiut 
que use.” 


FEOFFMENT. The gift of any corpo- 
real hereditament to another, (2 Bl. Comm. 
810,) operating by transmutation of posses- 
sion, and requiring, as essential to its com- 
pletion, that the seisin bo passed, (Watk. 
Conv. 188,) which might be accomplished 
either by investiture or by livery of seisin. 
1 Washb. Real Prop. 33. 

Also the deed or conveyance by which such 
corporeal hereditament is passed. 

A feoffment originally meant the grant of a fend 
or fee; that is, a barony or knight's fee, for which 
certain services were due from the feoifes to the 
feoffor. ‘This was the proper sense of the word; 
but by custom it came afterwards to signity alsoa 
graut (with livery of scisin) of a free inheritauce 
to a manand his heirs, referring rather to the per- 
petuity of the estate than to the feudal tenure. 1 
Reeve, Eng. Law, 90,91. It was for ages the only 
method (in ordinary use) for conveying the free- 
hold of land in possession, but has now fallen in 
great measure into disuse, even in England, hav- 
ing been almost entirely supplanted by some of 
that class of conveyances founded on the statute 
law of the realm. 1 Steph. Comm. 467, 468. 


FEOFFMENT TO USES. A feoffment 
of lands to one person to the use of another. 


FEOFFOR. The person making a feolf- 
ment, or enfeofiing another in fee. 2 JBI. 
Comm. 310; Litt. §§ 1, 57. 


FEOH. This Saxon word meant origi- 
nally cattle, and thenee property or money, 
and, by a second transition, wages, reward, 
or fee. It was probably the original form 
from which the words “feod,” “feudum,” 
“fief,” “feu,” and “fee” (all meaning a feu- 
dal grant of land) have been derived. 


TFEONATIO. Inforestlaw. Thefawn- 
ing season of deer. 
FREORME. Acertain portion of the prod- 


uce of the land due by the grantee to tlie 
lord aceording to the terms of the charter. 
Spel. Feuds, c. 7. 


FERA BESTIZA. Wild heasts. 


FER@ NATURA. Lat. Of a wild 
nature or disposition. Animals which are 
by nature wild are so designated, by way of 
distinction from such as are naturally tame, 
the latter being called “domitte nature.” 


WERCOSTA. Ital. <A kind of small 
vessel or boat. Mentioned in old Scotch law, 
and called “fercost.” Skene, 


FERDELLA TERR 486 


FERDELLA TERRE. A fardel-land; 
ten acres; or perhaps a yard-land. Cowell. 


FERDFARE. Sax. Asummons to serve 
inthearmy. Anwequittance from going into 
the army. Fleta, lib. 1, c. 47, § 23. 


FERDINGUS. A term denoting, appar- 


ently, a freeman of the lowest class, being 
named after the cotseti. 


FERDWITE. In Saxon law. An ac- 
quittance of manslaughter committed in the 
army; also a line imposed on persons for not 


going forth on a military expedition. Cow- 
ell. 
FERIA. Inold English law. A week- 


day; a holiday; a tay on which process could 
not be served; a fair; a ferry. Cowell; Du 
Cange; Spelman. 


FERI4. In Roman law. Holidays; 
generally speaking, days or seasons during 
which free-born Romans suspended their po- 
Jitical transactions and their lawsuits, and 
during which slaves enjoyed a cessation from 
labor. <All feria were thus dies nefasti, All 
Serie were divided into two classes,—“ feria 
publice” and “feriw private.” The latter 
were only observed by single families or in- 
dividuals, in commemoration of sume partic- 
ular event which had been of importance to 
them or their ancestors. Smith, Dict. Antiq. 


FERIAL DAYS. Holidays; also week- 
days, a8 distinguished from Sunday. Cowell. 


FERITA. 
wound; a stroke. 


In old Europeanlaw. A 
Spelman, 
FERLING. In old records. ‘The fourth 


part of a penny; also the quarter of a ward 
in a borough. 


FERLINGATA. A fourth part of a yard- 
land. 


FERLINGUS. A furlong. Co. Litt. 58, 


FERM, or FEARM. 
or both, let by lease. 


FERME. A farm; a rent; a lease; a 
house or land, or both, taken by indenture or 
lease. Plowd. 195; Vicat. See Fans. 


A house or land, 
Cowell. 


FERMER, FERMOR. A lessee; a} 


farmer. One who hoids aterm, whether of 
lands or au incorporeal right, such as cus- 
toms or revenue. : 


FERMIER. In French law. One who 
farms any public revenue. 


FERMISONA. Inold Englishlaw. The 
winter season for killing deer. 


| waste ground, or place where fern grows, 


FESTING-MAN 


FERMORY. In oll records, A place in 
monasteries, where they received the poor, 
(hospicio excipiebant,) and gave them pro- 
visions, (ferm, firma.) Spelman. Fence the 
modern Zfl7mary, used in the sense of a hog 
pital. 


FERNIGO. In old Englishlaw. A 


Cowell. 
FERRATOR. A farrier, (q. 2.) 


FERRI. In the civil law. To be borne; 
thatis on or about the person. This was dis- 
tinguished from portart, (to be carried,) 
which signified to be carried on an animal, 
Dig. 50, 16, 235. 


FERRIAGE. The toll or fare paid for 
the transportation of persons and property 
across a ferry. 

Literally speaking, itis the price or fare fixed by 
law for the transportation of the traveling public, 
with such goods and chattels as they may have 


with them, across a river, bay, or lake. 35 Cal 
606. 


FERRIFODINA. In old pleading. An 
iron mine, Townsh. Pl. 278. 


FERRUM. 
A. horse-shoe. 


FERRY. A liberty to have a boat upon 
a river for the transportation of men, horses, 
and carriages with their contents, for a rea- 
sonable toll. The term is also used to desig- 
nate the place where such liberty is exercised. 
See 42 Me, 9; 4 Mart. (N. S.) 426. 

“Ferry” properly means a place of transit acrosa 
a river or arm of the sea; but in law it is treated 
as a franchise, and defined as the exclusive right 
to carry passengers across a river, or arm of the 
sea, from one vill to another, or to connect a con- 
tinuous line of road leading from one township or 
villto another. It is not aservitude or easement. 
It is wholly unconnected with the ownership or 
occupation of Jand, so much so that the owner of 
the ferry need not have any property in the soil 


Iron. In old English law, 
Ferrura, shoeing of horses, 


adjacent on either side. (12 C. B., N. &., 32) 
Brown. 
FERRYMAN. One employed in taking 


persons across a river or other stream, in 
boats or other contrivances, at a ferry, 3 
Ala. 160; 8 Dana, 158, 

FESTA IN CAPPIS. In old English 
law. Grand holidays, on which choirs wore 
caps. Jacob. 

Festinatio justitis est noverea infor- 


tunii. Hob. 97. Hasty justice is the step 
mother of misfortune, 


FESTING-MAW. In old English law. 
A frank-pledge, or onc who was surety for 


ING-PENNY 


behavior of another. Monasteries 
the privilege of being “free from 
en," which means that they were 
nd for any man’s forthcoming who 
trunsgress the law.” Cowell. See 


[-PLEDGE. 
ING-PHNNY. Earnest given to 


ints when hired or retained. The same 
s-penny. Cowell. 
TINUM REMEDIUM. Lat. A 


ly remedy. The writ of assise was thus 
acterized {in comparison with the less 
peditious remedies previously availalle) 
the statute of Westininster 2, (18 Edw. 
24.) 


ESTUM. <A feast or festival. 
torum, the feast of fools. 


 FETTERS. Chains or sitackles for the 
feet; irons used to secure the legs of convicts, 
ruly prisoners, etc. Similar chains secur- 
y the wrists are called “handcutis.” 


 FBU. Indscotch law. A hoiding or ten- 
where the vassal, in place of military 
vice, maakes his return in grain or money, 
Distinguished fram “wardhollding,” which is 
the Military tenure of the country. Bell. 


Festum 


FEU ANNUALS. InScoichlaw. The 
-reddendo, or annilal return from the vassal 
toa superior in a feu holding. 


FEU ET LIEU. Fr. In old French 
and Oanadian law, Hearth and home, A 
erin importing actual settlement upon land 
by a tenant. 


FEU HOLDING. an Scotch law. A 
holding by tennre of rendering grain or 
money in place of military service. Bell, 


PREUAR. In’Scotch law. 
“afeu; afeu-vassal. ell. 


FEUD. In feudal law. An estate in 
land held of a superior on condition of ren- 
Goering him serviees. 2 Bl. Comm. 108. 

An inlieritable right te the use and oceu- 
pation of lands, held on condilion of render- 
ing services to the lord or proprietor, who 
himself retains the property in the lands. 
See Spel. Feuds,c. 1. 

In this sense the word is the same as 
“feod,” “feodum,” “fendumj;” “fief,” or 
“fap, ” 

In Saxon and old German law. An 
enmity, or species of private war, existing 
between the family of a murdered man and 
the family of his slayer; a combination of 


The tenant of 


487 


FEUDAL SYSTEM 
the former to take yenzrance upon the latter. 
See DEADLY FEUD; Fara. 


FEUDA. Feuds or fees. 


FEUDAL. Pertaining to fends or fees; 
relating to or growing out of the feudal sys- 
tem or feudal law; having the quality of a 
feud, as distinguished from “allodiai.” 


FEUDAL ACTIONS. Anancient name 
for read actions, or such as concern real prop- 
erty only. 3 BL Comm. 117. 


FEUDAL LAW. The body of jurispru- 
dence relating to feuds; the real-property law 
of the feudal system; the law anciently reg- 
ulating the property relations of lurd and vas- 
sal, and the creation, incidents, and trans- 
mission of feudal estates. 

The body of laws and usages constituting the 
“feudal law” was originally customary and un- 
written, buta compilation was made in the twelfth 
century, called“ Feodarum Consuetudines, ” which 
has formed the basis of later digests, The fendal 
law prevailed over Europe from the twelfth to the 
fourteenth century, and was introduced into Eng- 
land at the Norman Conquest, where itformed the 
entire basis of the law of real property until compar- 
atively moderutimes. Survivals of the feudal law, 
to the present day, so affect and color that branch of 
jurisprudence as to require a certain knowledge of 
the feudal law in order to the perfect comprehen- 
sion of modern tenures and rules of real-property 
law. 


FRUDAL POSSESSION. The equiva- 
lent of “seigin” under the feudal system 


FEUDAL SYSTEM. The system of 
feuds. A political and social system which 
prevailed throughout Europe during the 
eleventh, twelfth, and thirteenth centuries, 
and ig supposed te have grown out of the 
peculiar usages and policy of the Tentonie 
naiions who overran the continent after the 
fall of the Western Roman Empire, as de- 
veloped by the exigencies of their military 
domination, and j;ossibly furthered by no- 
tions taken from the Roman jurisprudence. 
Ib was introduced into England, in its com- 
pleteness, by William I., A. D. 1085, though 
it may lave existed in a rudimentary form 
among the Saxons before the Conquest, It 
formed the entire basis of the real-property 
jaw of Englund in medieval times; and sur- 
vivals of the system, in modern days, so 
modify and color that branch of jurispru- 
dence, both in England and America, that 
many of its principles require for their coin- 
plele understanding a knowledge of the feud- 
alsystem. The feudal system originated in 
the relations of a military chieftain and his 
followers, or king and nobles, or lord and 
yassals, and esperially their relatious us de- 


FEUDAL SYSTEM 


termined by the bon) established by a grant 
of land from the former to the latter. From 
this it grew into a complete and intricate 
complex of rules forthe tenure and transmis- 
sion of real estate, and of correlated duties 
and services; while, by tying men to the 
land and to thoss holding above and below 
them, it created a close-knit hierarchy of per- 
sons, and developed an aggregate of social 
and political institutions, 


For an account of the feudal system in its | 


juristic relations, see 2 Bl. Comm. 44; 1 
Steph. Comm, 160; 3 Kent, Comm. 487; Spel, 


Feuds; Litt. Ten.; Sull. Lect.; Spence, Eq. | 


Jur.; 1 Washb. Real Prop. 15; Dalr. Feu. 
Prop. For its political and social relations, 
see Ifall, Middle Ages; Maine, Anc. Law; 
Rob. Car. V.; Montesq. Esprit des Lois, bk. 
30; Guizot, Hist. Civilization, 


FEUDAL TENURES. The tenures of | 


real estate under the feudal system, such as 
knight-service, socage, villenaye, etc. 


FERUDALISM. The feudal system; the 
aggregate of feudal principles and usages, 


FREUDALIZE. To reduce to a feudal 
tenure; to conform to feudalism. Webster. 


FEUDARY. A tenant who holds by 
feudal tenure. Held by feudal service. Re- 
lating to feuds or feudal tenures. 


FEUDATORY. Seo FEODATORY. 


FEUDBOTE. A recompense for engag- 
ing in a feud, and the damages consequent, it 
having been the custom in ancient times for 
all the kindred to engage in their kinsman’s 
quarrel. Jacob, 


FEHUDE, or DEADLY FRUDE. A 
German word, signifying implacable hatred, 
not to be satisfied but with the death of the 
enemy. Such was that among the people in 
Scotland and in the northern parts of Eng- 
land, which was a combination of all the kin- 
dred to revenge the death of any of the blood 
upon the slayer and all his race. Termes de 
la Ley. 


FEUDIST. <A writer on feuds, as Cuja- 
cius, Spelman, ete. 


FEUDO. In Spanish law. Feud or fee. 
White, New Recop. b. 2, tit. 2, ce. 2. 


FEUDUM. A feud, fief, orfee. A right 
of using and enjoying forever the lands of 
another, which the lord grants on condition 
that the tenant shall render fealty, military 
duty, and other services. Spelman. See 
FropuM; Fup, 


483 


| fee. One limited to descend to certain classes 


FEUDUM TALLIATUM 


FEUDUM ANTIQUUM. An ancien 
feud or fief; a fief descended to the vasga 
from his ancestors. 2 Bl. Comm. 212, 221, 
A fief which ancestors had possessed for ner 
than four generations. Spelman. 


FEUDUM APERTUM. An open feu 
or fief; a fief resulting back to the lord, whe 
the blood of the persen last seised was utterly 
extinct and gone. 2 BL Comm. 245. 


FEUDUM FRANCUM. A freo feud. 
One which was noble and free from talliags 
and other subsidies to which the plebeia 
feuda (vulgar feuds) were subject. Spel- 
man. 


FEUDUM HAUBERTICUM. A fee 
held on the military service of appearing fully 
armed at the dan and arriereban. Spelman 


FEUDUM IMPROPRIUM. An im 
proper or derivative feud or fief. 2 Bl, 
Comm. 58. 


FEUDUM INDIVIDUUM. An indi- 
visible or impartible feud or fief; descendible 
to the eldest son alone, 2 Bl. Comm, 215. 


FEUDUM LIGIUM. A liege feud o 
fief; a fief held Immediately of the sovereign; 
one for which the vassal owed fealty to his 
lord against all persons. 1 Bl. Com. 367; 
Spelman. 


FEUDUM MATERNUM. A maternal 
fief; a fief descended to the feudatory from 
his mother. 2 Bl. Comm. 212. 


FEUDUM NOBILE. A fee for which 
the tenant did guard and owed fealty and 
homage. Spelmun. 


FEUDUM WNOVUM. A new feud or 
fief; a fief which began in the person of the 
feudatory, and did not come to him by sue 
cession. Spelman; 2 Bl. Comin. 212. 


FEUDUM NOVUM UT ANTIQUUM. 
A new fee held with the qualities and inci- 
dents of an ancient one, 2 Bl. Comm. 212. 


FRUDUM PATERNUM. A fee which 
the paternal anceslors had held for four gen- 
erations. Calvin. One descendible to hvirs 
on the paternal side only. 2 Bl. Comm. 223. 
One which might be held by males only. Du 
Cange. 


FEUDUM PROPRIUM. A proper, 

genuine, and original feud or fief; being of a 

purely military character, and he.d by mili- 
tary service. 2 Bl. Comm. 57, 58. 


FEUDUM TALLIATUM. A restricted 


FEW 


66. 


J. An indefinite expression for a 
[or limited number, In cases where ex- 
ption is required, the use of this 
not answer. 653 Vt. 600; 2 Car. & 


L. Fr. To pledge one’s 


ANZA. InSpanishlaw. A snrety or 
antor; the contract or engagement of a 


_FIAR. In Scotch law. He that has the fee 
r feu. The proprietor is termed “fiar,” in 
irailistinction tothe life-renter. 11Kames, 
. Pref. One whose property is charged 
‘with a life-rent. 


FIARS PRICES. The value of grain in 
by the respective sheriffs, in the month of 
February, with the assistance of juries. 
These regulate the prices of grain stipulated 


has been stipilated. 


FIAT. In English practice. A short or- 
der or warrant of a judge or magistrate di- 
recting some act to be done; an authority is- 
suing from some competent source for the 
doing of some legal act. 

One of the proceedings in the English bank- 
rupt practice, being a power, signed by the 
lor) chancellor, addressed to the court of 
bankruptey, authorizing the petitioning cred- 
itor to prosecute his complaint before it. 2 
Steph. Comm. 199. By the statute 12 & 13 
Vict. c. 116, fiats were abolished. 


Ersk. 1, 4, 6. 


Fiat jus, ruat justitia. Let law prevail, 
though justice fail. 


y FIAT JUSTITIA. Let justice be done. 
On a petition to the king for his warrant to 
bring a writ of error in parliament, he writes 
on the top of the petition, “iat justitia,” 
and then the writ ot error is made out, etc, 
Jueob, 


Fiat justitia, ruat ecslum. 
done, though the heavens should fall. 


Fiat prout fieri consuevit, (nil temere 
novandum.) Let it be done as it bath used 
to be done, (nothing must be rashly innovat- 
ed.) Jenk. Cent. 116,’ case 39; Branch, 
Prine. 


489 


Bl. Comm. 112, note; 1 Washb. ' 


‘the different counties of Scotland, fixed yearly | 


‘to be sold at the fiar prices, or when no price | 


Let right be 


FICTITIOUS ACTION 


FIAT UT PETITUR. Let it be done as 


| it is asked. A form of granting a petition. 


FICTIO. In Roman law. <A fiction; an 
assumption or supposition of the law. 

“Fictio” in the old Roman law was properly a 
term of pleading, and signified a false averment 
on the part of the plaintiff which the defendant 
was not allowed to traverse; as that the plaintiff 
was a Roman citizen, when in truth he was a for- 
eigner, The object of the fiction wus to give the 
court jurisdiction. Maine, Anc. Law, 25. 


Fiectio cedit veritati. Fictio juris non 
est ubi veritas. Fiction yields to truth. 
Where there is truth, fiction of law exists 
not. 


Fictio est contra veritatem, sed pro 
veritate habetur. Fiction is against the 
truth, but it is ta be esteemed truth. 


Fictio juris non est ubi veritas. Where 
truth is, fiction of law does not exist. 


Fictio legis inique operatur alicui 
damnum vel injuriam. A legal fiction 
does not properly work Joss or injury. 3 
Coke, 86; Broom, Max. 129. 


Fictio legis neminem ledit. A fiction 
of law injures noone. 2 Rolle, 502; 3 BI. 
Comm. 43; 17 Johns. 348. 


FICTION. Anassumption or supposition 
of law that something which is or may be 
false is true, or that a state of facts exists 
which has never really taken place. 

A fiction is arule ol law which assumes as 
true, and will not allow to be disproved, 
something which is false, but not impossible. 
Best, Ev. 419. 

These assumptions are of an innocent, or even 
beneficial character, and are made for the advanec- 
ment of the ends of justice. They secure this end 
chiefly by the extension of procedure from cases 
to which it is applicable to other cases to which it 
is not strictly applicable, the ground of inapplica- 
bility being some differenca of an immaterial char- 
acter, Brown. 

Fictions are to be distinguished from pre- 
sumptions of law. By the former, something 
known to be false or unreal is assumed as 
true; by the latter, an inference is set up, 
whieh may beand probably is true, but which, 
at any rate, the lew will not permit to be 
controverted, 

Mr. Best distinguishes legal fictions from pre- 
sumptions juris ef de jure, apd divides them into 
three kinds,—affirmative or positive fictions, nsga- 
tive fictions, and fictions by relation. Best, Pres. 
p. 27, § 24. 


FICTITIOUS ACTION. Anaction 
brought for the sole purpose of obtaining the 


H 


FICTITIOUS ACTION 


opinion of the court on a point of law, not 
for the settlement of any actual controversy 
between the parties. 


Courts of justice were constituted for the pur. 
pose of deciding really existing questions of right 
between parties; and they are not bound to answer 
impertinent questions which porsons think proper 
to ask them in the form of an.action on a wager. 
12 Hast, 248. . 


FICTITIOUS PLAINTIFF. A person 
appearing in the writ or record as the plain- 
tiff in «a suit, but who in reality does net ex- 
ist, or who is ignorant of the suit and of the 
use of his name in it, It is a contempt of 
court to sue in the name of a fictitious party. 
See 4 Bl. Comm. 134. 


FIDEI-COMMISSARIUS. In the civil 
law this term corresponds nearly to onr “ces- 
tud que trust.” Jt designates a person who 
has the real or beneficial interest in an estate 
or fund, the title or administration of which 
is temporarily confided to another. See Story, 
Eq. Jur. § 966. 


FIDEI-COMMISSUM. In the civil 
law. A species of trust; being a gift of 
property (usually by will) to a person, ac- 
companied by a request or direction of the 
donor that the recipient will transfer the 
property to another, the latter being a per- 
son not capable of taking directly under the 
will or gift. 


FIDE-JUBERE. In the civil law, To 
order a thing upon one's faith; to pledge 
one's self; to vecome surety for another. 
Fide-jubes? Pide-jubeo: Do you pledge 
yourself? I do pledge myself. Inst. 3, 16, 
1. One of the forms of stipulation. 


FIDE-JUSSOR. Inlomaniaw. A 
guarantor; one who becowes responsible for 
the payment of another’s debt, by a stipula- 
tion which binds him to discharge it if the 
principal debtor fails to do so. Mackeld. 
Rom, Law, § 452; 3 Bl. Comin. 108. 

The sureties taken on the arrest of a de- 
fendant, in the court of admiralty, were for- 
merly denuminuted “iide-jussors.” 3 Bil. 
Comm. 108. 


FIDELIS. Faithful; trustworthy. 
FIDELITAS. 


Fidelitas. De nullo tenemento, quod 
tenetur ad terminum, fit homagii; fit 
tamen inde fidelitatis sacramentum. Co. 
Litt. 676. Fealty. For no tenement which 
is held for a term is there the oath of hom- 
age, but there is the oath of fealty. 


Fealty; fidelity. 


490 


FIEF D'HAUBERT 


FIDEM MENTIRI. When a tenant 
does not keep that fealty which he has sworn 
tothe lord. Leg. Hen. I. e. 53. 


FIDE-PROMISSOR. See Frpe-J ussor. 


FIDES. Faith; honesty; confidence; 
trust; veracity; honor, Occurring in the 
phrase “bona jides;” so, also, “mala fides.” 


Fides est obligatio conscientie alicu- 
jus ad intentionem alterius. Bicon. A 
trust is an obligation of conscience of one to 
the will of another, 


Fides servanda est. Faith must ba ob- 
served. An agent must not violate the con- 
fidence reposedin him. Story, Ag. § 192. 


Fides servanda est; simplicitas juris 
gentium prevaleat. Faith must be kept; 
the simplicity of the law of nations must pre- 
vail. A rule applied to bills of exchange as 
a sort of sacred instruments. 8 Burrows, 
1672; Story, Bills, § 15. 


FIDUCIA. In thecivillaw. A contract 
by which we sell a thing to some one—that 
is, transmit to him the property of the thing, 
with the solemn forms of emancipation—on 
condition that he willsell it back to us. This 
species of contract took place in the emanci- 
pation of children, in testaments, and in 
pledges. Poth. Pand. h. t. 


FIDUCIARIUS TUTOR. In Roman 
law. The elder brother of an emancipated 
pupiilus, whose father had died leaving him 
still under fourteen yeurs of age. 


FIDUCIARY. The term is derived from 
the Roman law, and means (4s a noun) a 
person holding the character of a trustee, or 
a character analogous to that ofatrustee, in 
respect to the trust and confidence involved in 
it and the scrupulous good faith and eandor 
which it requires. Thus, a person isa fidu- 
ciary who is invested with rights and powers 
to be exercised for the benefit of another per- 
son. 

As an adjective it means of the nature of 
a trust; having the characteristics of a trust; 
analogous to a trust; relating to or founded 
upon a trust or confidence. 


FIDUCIARY CONTRACT. Anngree- 
ment by which a person delivers a thing lo 
another on the condition that he will restore 
it to lim. 


FIKF. A fee, feod, or feud. 


FIEF D’HAUBERT. Fr. 
feudal law. 


In Nerman 
A fief or fee held by the tenure 


FIEF-TENANT 
f-servica; a knight's fee. 2 BI. 
62, 


[BF-TENANT. In old English law. 
holder of a fief or fee; a fecholder or 
der. 


EL. In Spanish law. <A sequestrator; 
son in whose hands a thing in dispute 
dicially deposited; a receiver. Las Par- 
pt. 3, tit. 9, i. 1. 


ELD. This term might well be con- 
Biiered as definite and certain a ‘lescrijtion 
a3 “close,” and might be used in law: but it 


, by which officers of the forest and 
ffs of hundreds had the right to compel 
6 hundred to furnish them withale. Tom- 


FIELD REEVE, An officer elected, in 
England, by the owners of a regulated past- 
“treto keep in orcter the fences, ditches, ete., 
on the land, to regulate the times during 
which animals are to be admitted to the 
pasture, and generally to maintain and man- 
age the pasture subject to the instructions of 
(General Inclosure Act, 1845, 
§ 118.) Sweet. 


FIELDAD. In Spanish law. Seques- 
tration. ‘This is aliowed in six cises by the 
‘Spanish law where the title to property is in 
dispute. Las Partidas, pt. 3, tit. 3,1, 1. 


FIERDING COURTS. Ancient Gothie 
courts of an inferior jurisdiction, se called 
because four were instituted within every 
inferior district or hundred. 3 Bl. Comm. 34, 


FIERI. Lat. 
bee IN Frei. 


To be made; to be done, 


FIERI FACIAS. (That you cause to be 
made.) In practice. A writ of execution 
commanding the sheriff te levy and make 
the amount of a judgment from the goods 
and chattels of the Judgment debtor, 


FIERI FACIAS DE BONIS ECCLE- 
SIASTICIS. When a sherilf to a common 
ji. fa. returns awila bea, and that the de- 
fendant is a benefiecd clerk, not having any 
lay fee, a plainii ff may issuea fi. fa. de bonis 
ecclesiasticés, aduressed to the bishop of the 
diocese or to the arciibishop, (during the va- 
caney of the bishop's see,) commanding him 
to make of the ecclesiastical goods and chat- 
tels belonging to the defendant within his 


491 


FILACER 


diocese the sum thereir. mentioned. 2 Chit 
Arelib. Pr. (12th Ed.) 1062. 


FIFRI FACIAS DE BONIS THESTA- 
TORIS. The writ issued on an ordinary 
judgment against an executor when sued for 
a debt due by his testator, If the sheriff re- 
turns tu this writ via bona, and a devas- 
tavil, (q. @,) the plaintiff may sue out a 
Jieri facias de bonis propriis, under which 
the goods of the executor himself are seized. 
Sweet. 


FIERI FECI. (i have caused to be 
made.) In practice, The name given to the 
return made by a sherilf or other officer to a 
writ of fieri fucias, where he has collected 
the whole, or a part, of the aum directed to 
be levied. 2 Tidd, Pr, 1018. ‘The return, 
ag actually made, is expressed by the word 
“SatisHed” indorsed on the writ. 


Fieri non dehet, (debuit,) sed factum 
valet. It ought not to be done, but [if] 
done, itis valid. Shep. Touch, 6; 5 Coke, 
39; T. Raym. 58; 1Strange, 526. A maxim 
frequently applied in pvactice. 19 Jotins. 


* . 


FIFTKENTHS. In Englishtaw. This 
was originally a tax or tribute, levied at in- 
tervals by act of parliament, consisting of 
one-fifteenth of all the movable property of 
the subject or personalty in every city, lown- 
ship, and borough. Under Edward ILI., the 
taxable praperty was assessed, and the value 
of its fifteenth part (then about £29,000) was 
recorded in the exchequer, whence the tax, 
levied on that valuation, continued to be ealled 
a’ fifteenth,” although, as the wealth of the 
kingdom increased, the name ceased to be an 
accurate designation of the proportion of the 
tax to the value taxed. See 1 Bl. Comm, 309. 


FIGHT. An encounter, with blows or 
other personal violence, between two persons. 
See 738 N.C, 155, 


FIGHUTWITE. Sax. A mulct or fine 
for naking a quarrel to the disturbance of 
the peace. Called also by Cowell “forisfae- 
tura puyna.” The aimount was one hundred 
and twenty shillings. Cowell. 


FIGURES. The numerical characters by 
which numbers are expressed or written. 


FILACER. An oflicer of the superior 
courts at Westminster, whose duty it was to 
file the writs on which he made process. 
There were fourteen filacers, and it was their 
duty to make out all original process. 


FILARE 


Cowell; Blount. The office was abolished in 


1837. 
‘FILARE. In old English practice. To 
file. Townsh. Pl. 67. 


FILE, 9. In practice. To put upon the 
iiles, or deposit in the custody or among the 
records of a court. © 

“Filing a bill” in equity is an equivalent 
expression to “commencing a suit.” 

“To file” a paper, on the part of a party, is 
to place it in the official custody of the clerk. 
“To file,” on the part of the clerk, is to in- 
dorse upon tlie paper the date of its reception, 
and retain it in his office, subject to inspec- 
tion by whomsoever it may concern, 14 
Tex. 339. 

The expressions “filing” and “entering of rec- 
ord” are not synonymous. They are nowhere so 
use, but always convey distinct ideas. “Filing” 
originally signified placing papers in order ona 
thread or wire for safe-keeping. In this country 
and at this day it means, agreeably to our practice, 
depositing them in due order in the proper office. 


Hatering of record uniformly implies writing. 
2 Blackf. 247. 


FILE, n. A thread, string, or wire upon 
which writs and other exhibits in courts 
and offices are fastened or filed for the more 
safe-keeping and ready turning to the same. 
Spelman; Cowell; Tomlins, Papers put to- 
gither and tied in bundles. A paper is said 
also to be filed when it is delivered to the 
proper officer, and by him received to be kept 
Gwihle, 13 Vin. Abr 2h? Lith, 113; 1 
Hawk. P, C.7, 207. But, in general, “file,” 
or “the files,” is used lousely to denote the 
official custody of the court or the place in 
the offices of a court where the records and 
papers are kept. 


FILEINJAID. Brit. A name given to 
villeins in the laws of Hoel Dda. Barring. 
Obs. St. 302. 


FILIATE. To fix a bastard child on some 
one, a3 its father, To declare whose child 
ifis, 2W BL 1017. 


Filiatio non potest probari. 
126. Filiation cannot be proved. 

FILIATION. ‘The relation of a child to 
its parent; correlative to “paternity.” 

The judicial assignment of an illegitimate 
child to a designated man as its father. 

In the civil law. The descent of son or 
daughter, with regard to his or her father, 
mother, and their ancestors. 


FILICETUM. In old English law, A 
ferny or bracky ground; a place where fern 
grows. Co. Lilt. 40; Shep. Touch. 95. 


Co. Litt. 


492 


FILUM 


FILIOLUS. In old records. <A godson; 
Spelman. 
FILIUS. Lat. A son; a child, 


A distinction was sometimes made, in the olvil 
law, between “flit” and “liberi;” the latter word 
including grandchildren, (nepotes,) the former not 
Inst. 1,14, 5. But, according to Paulus and Juli- 
anus, they were of equally extensive import, Dig. 
50, 16, 8£; Id. 50, 16, 201. 


Filius est nomen natures, sed heres 
nomen juris. 1Sid.193. Son isa nameof 
nature, bub heir is a name of law. 


FILIUS FAMILIAS. In the civil law, 
The son of a family; an unemiuncipated son. 
Inst. 2, 12, pr.; Id. 4, 5, 2; Story, Conti. Laws, 
§ 61. 


Filius in utero matris est pars visce- 
rum matris. 7 Coke, 8. A son in the moth- 
er’s womb is part of the mother’s vitals. 


FILIUS MULIERATUS. In old En- 
glish law. The eldest legitimate son of a 
woman, who previously had an illegitimate 
son by his father. Glany. lib. 7,¢.1. Oth 
erwise culled “mudier.” 2 Bl. Comm. 248, 


FILIUS NULLIUS. The son of nobody; 
é. @., & bastard. 


FILIUS POPULI, 
a natural child. 


FILL. To make full; to complete; tosat- 
isfy or fulfill; to possess and perform the du- 
ties of. 


The election of a person to an office constitutes the 
essence of his appointment; but the office cannot 
be considered as actually filled until his accept 
ance, either express or implied. 2N. H. 202, 

W here one subscribes for shares in a corporation, 
agrecing to “take and fili” a certain numbar of 
shares, assumpsit will lie against him to recover 
an assessmept on his shares; the word “fill,” in 
this connection, amounting to a promise to pay as- 
sessments. 10 Me. 478. 

Yo fill a prescription is to furnish, prepare, and 
combine the requisite materials in due proportion 
as prescribed. 61 Ga. 505. 


A son of the people; 


FILLY. A young mare; a female colt, 
An indictment charying the theft of a “Ally” 
is not sustained by proof of the larceny of 6 
“mare.” 1 Tex. App. 448. 


FILUM. In old practice. A file; f.e,8 
thread or wire on which papers were strung, 
that being the ancient method of filing. 

An imaginary thread or line passing 
through the middle of a stream or road, asin 
the phrases “filum ague,” “jiluim vie,” or 
along the edge or border, as in “Jiluin for- 
estae.” 


FILUM AQUA’ 


AQUA. A thread of water; a 
water; the middle line of astream of 
supposed to divide it into two equal 


forest. 2 Bl. Comm. 419; 4 Inst. 303. 


LUM ViAt. The thread or middle 
7@ of a road. An imaginary line drawn 
gh the middie of a road, and constitut- 
he boundary betwesn the owners of the 
eachside. 2Smith, Lead. Cas. (Am. 
Ed.) 98, ncte. 

FIN. An end, or limit; a limitation, or 
period of limitation. 
' FIN DE NON RECEVOIR. In French 
daw. An exception or plea founded on law, 

shich, withont entering into the merits of 
he action, shows that the plaintiff has no 
ht to bring it, either because the time dur- 
which it ought to have been brought has 
sed, which is called “prescription,” or 
{ there has been a compromise, accord and 
staction, or any other cause which has 
destroyed the right of action which once sub- 
fisted. Poth. Proc. Civile, pt. 1, ¢. 2, § 2, 
art, 2. 


_ FINAL, Definitive; terminating; com- 
pleted; last. Inits use in jurisprudence, this 
"word is generally contrasted with “interloen- 
tory.” 


FINAL COSTS. Such costs as are to be 
paid at the end of the suit; costs, the lia- 
bility for which depends upon the final re- 
‘suli of the litigation. 


FINAL DECISION. One from which 
no appeal or writ of error can be taken. 47 
Il. 167; 6 Hl. & Bl. 408. 


FINAL DECREE, A decree in equity 
which fully and finaily disposes of the whole 
litigation, determining all questions raised by 
the case, andl leaving nothing that requires 
further judicial action. 


FINAL DISPOSITION. When it is 
said to be essential to the validity of an 
| award that it should make a “final disposi- 
| tion” of the matters embraced in Lhe submis- 
sion, this term means such a disposition that 
nothing further remains to fx the rights and 
obligations of the parties, and no further con- 
troversy or lifigation is required or can arise 
on the matter. Il is sueli an award that the 
party against whom it is made ean perform 


ae 


SSS 


i. 


493 


FINAL SETTLEMENT 


or pay it without any further ascertainment 
of rights or duties. 50 Me. 401. 


FINAL HEARING. This term desig- 
nates the trial of an equity case upon the 
merits, as distinguished from the hearing of 
any preliminary questions arising in the 
cause, which are termed “interlocutory.” 
24 Wis. 165. 


FINAL JUDGMENT. In practice. A 
judgment which puts an end to an action at 
law by declaring that the plaintiff either bas 
or has not entitled himself to recover the 
remedy he sues for. 3 Bi. Comm. 398. So 
distinguished from trtertocutory judgments, 
which merely establish the right of the plain- 
tiff to recover, in general terms. ld. 397. 
A judgment which determines a particular 
cause, 

A judgment which cannot be appealed from, 
which is perfectly conclusive upon the mat- 
ter adjudicated. 24 Pick.300. <A judgment 
which terminates all litigation on the same 
right. The term “final judgment,” in the 
judiciary act of 1789, § 25, includes both 
species of judgments as just detined. 2 Pet. 
494; 1 Kent, Comm. 316; 6 How. 201, 209. 

A judgment is final and conclusive between 
the parties, when rendered on a verdict on the 
merits, not only as to the facts actually liti- 
gated and decided, but also as toall facts nec- 
essarily involved in the issue. 26 Ala. 504. 


FINAL PASSAGE. In parliamentary 
law. The final passage of a bill is the vote 
on its passage in either house of the legisla- 
ture, atter it has received the prescribed num- 
ber of readings on as many different days in 
that house. 54 Ala. 613, 


FINAT, PROCESS. The last process in 
asuit; thatis, writs of execution. Thus dis- 
tinguished from mesne process, which in- 
cludes all writs issued during the progress of 
a cause and before final judgment. 


FINAL RECOVERY. The final judg- 
ment in anaction. Also the final verdict in 
an action, as distinguished from the judgment 
entered upon it, 6 Allen, 243. 


FINAL SENTENCH. One which puts 
an end toacase. Distinguished frem inter- 
lucutory. 


FINAL SETTLEMENT. This term, as 
applied to the administration of an estate, ig 
usually understood to have reference to the 
order of court approving the account which 
closes the business of the estate, and which 

| finally discharges the executor or administra- 


FINALIS CONCORDIA 


tor from the duties of his trust. 
Rep. 131. See, also, 65 Ala. 442. 


FINALIS CONCORDIA. A final or 
conclusive agreement. In the process of 
“levying a fine,” this was a final agreement 
entered by the litigating partics upon the 
record, by permission of court, settling the 
title tothe land, and which was binding upon 
them like any judgment of the court. 1 
Washb. Real Prop. *70. 


FINANCES. The public wealth of a 
state or government, considered either static- 


13 N. E. 


ally (as the property or money which a stato | 


now owns) or dynamically, (as its income, 
revenue, or public resources.) Also the rev- 
enue or wealth of an individual. 


FINANCIER. A person employed in 
the economical management and application 
of public money; one skilled in the manage- 
ment of financial affairs. 


FIND. Todiscover; todetermine; to as- 
certain and declare. To announce a conclu- 
sion, as the result of judicial investigation, 
upon a disputed fact or state of facts; as a 
jury are said to “find awill.” Todetermine 
a controversy in favor of one of the parties; 
as a jury “tind for the plaintiif.” 


FINDER. One who discovers and takes 
possession of another’s personal property, 
which was then lost. 

A searcher employed to discover goods im- 
ported or exported without paying custom. 
Jacob. 


FINDING. A decision upon a question 
of fact reached as the result of a judicial ex- 
amination or investigation by a court, jury, 
referee, coroner, etc. 


FINE, vo. Toimposea pecuniary punish- 
ment or mulct. To sentence a person con- 
victed of an offense to pay a penalty in 
money. 


FINE, n. In conveyancing. Anamica- 
ble composition or agreement of a suit, either 
actual or fictitious, by leave of the court, by 
which the lands in question become, or are 
acknowledged to be, the right of one of the 
parties. 2 B1l.Comm. 349. ITines were abol- 
ished in England bySt.3 & 4 Wm. 1V.c. 74, 
substituting a disentailing deel, (q. v.) 

The party who parted with the land, by 
acknowledging the right of the viher, was 
said to levy the fine, and was called the “cog- 
nizor” or “conusor,” while the party who re- 
covered or received the estate was termed 


494 


FINE NON CAPTENDO, ETC: 


the “cognizee” or “conusee,” and the fine 
was said to be levied to him. 

In the law of tenure. A fine is a mon- 
ey payment made by a feudal tenant to his 
lord. The most usual fine is that payable 
the admittance of a new tenant, but there are 
also due in some manors fines upon aliena- 
tion, on a license to demise the lands, or on 
the death of tiie lord, or other events. Elton, 
Copyh. 159. 

In criminal law. Pecuniary punishment 
imposed by a lawful tribunal upon a person 
convicted of crime or misdemeanor. 

It means, among other things, “s sum of money 
paid at the end, to make an end of a transaction, 
suit, or prosecution; mulet; penalty.” In ordl- 
nary legal language, however, it means a sum of 
moucy imposed by a court according to law, as a 
punishment for the breach of some penal statute. , 
22 Kan. 15. 

Itis not confined to a pecuniary punishmentof an 
offense, inflicted by a court in the exercise of crim- 
inal jurisdiction. It has other meanings, and may 
include a forfeiture, or a penalty recoverable by 
civilaction. 11 Gray, 878. 

FINE AND RECOVERY ACT. The 
English statutes 3 & 4 Wm. IV. c. 74, for 
abolishing fines and recoveries, I Steph. 
Comni. 514, et seq. 


FINE ANULLANDO LEVATO DE 
TENEMENTO QUOD FUIT DE AN- 
TIQUO DOMINICO. An abolished writ 
for disannuling « fine levied of lands in an- 
cient demesne to the prejudice of the lord. 
Reg. Orig. 15, 


FINE CAPIENDO PRO TERBIS. 
An obsolete writ which lay fora person who, 
upon conviction by jury, had his lands and 
goods taken, and his body impvisoned, to be 
remitted his imprisonment, and have his 
lands and goods redelivered to him, on ob- 
taining favor of a sum of money, etc. Reg. 
Orig. 142. 


FINE FOR ALIENATION, A [fine 
anciently payable upon the alienation of a 
feudal estate and substitution of a new ten- 
ant. It was payable Lo the lord by all tenants 
holding by knight’s service or tenants in 
capile by socage tenure. Abolished by 12 
Car. II. e. 24. Ses 2 Bl. Comm, 71, 89. 


FINE FOR ENDOWMENT. A fine 
anciently payable to the lord by the widow 
of a tenant, without which she could not be 
endowed of her husband’s lands. Abolished 
under Henry I., and by Afegna Charta. 2 
Bl. Comm. 135; Mozley & Whitley. 


FINE NOW CAPIENDO PRO PUL- 
CHRE PLACITANDO. An obsolete writ 


> 


PRO REDISSEISINA, ETC. 


ig. 

PRO REDISSHISINA CAPI- 
An old writ that lay for the release 
mprisoned fora redisscisin. on pay- 
‘Teasonabie fine. Reg. Orig. 222. 


E SUR COGNIZANCE DE 
COME CEO QUE IL AD DE 
DONE. A fine upon acknowledg- 
of the right of the cognizee as that 
he hath of the gift of the cognizor. 
is the deforciant acknowledged in court 
mer foeffment or gift in possession to 
eheen maile by him tothe plaintiff. 2 
nin, B52. 


NE SUR COGNIZANCE DE 
Iv TANTUM. A fine upon acknowl- 
nt of the right merely, and not with 
reuinstance ef a preceding gift from 
cognizor, This was commonly used to 
reversionary interest which was in the 
wr, of Which there could be no fveff- 
tj supposed, 2 Bl. Comm, 353; 1 Steph. 
- O19. 


NE SUR CONCESSIT. A fine upon 
sti, (tie hath granted.) A species of 
, Where the cognizor, in order to make 
d of disputes, though he acknowledged 
) precedent right, yet grated to the cog- 
an estate de novo, usually for life or 
by way of supposed composition. 2 
‘Bi. Comu, 353; 1 Steph, Comm. 519. 


FINE SUR DONE GRANT ET 
RENDER. A double fine, comprehending 
the fine sur cognizance de droit come ceo and 
the fine sur concessit. It might be used to 
convey particular limitations of estates, 
whereas the fine sw: cugnizanee de drott 
tome ceo, cte., conveyed nothing but an abso- 
lute estate, either of inheritance, or at least 
frechold. In this last species of fines, the 
eognizee, after the right was acknowledged to 
bein him, granted back again or rendered to 
the cognizor, or porhaps to a stranger, some 

other estute in the premises. 2 Bl. Comm. 
Bas. 


eo FINE-FORCE. An absolute necessity 
or inevituble constraint. Plowd. 94; 6 Coke, 
41; Cowell. 


FINEM FACERE. To make or paya 
fine. Bract. 106. 


FINES LE ROY. In old English iaw. 
The king’s tines. Fines formerly payable to 
the king for any contempt or offense, as 
where one committed any trespuss, or fulse- 


495 


FIRE 


officers of courts to take fines for | ly denied his own deed, or did anything in 


eontempt of law. Termes de la Ley. 


FINIRE. In old English law. To fine, 
or pay a fine. Cowell. To and or finish a 
matter. 


PINTS, An end; a fine; a boundary or 
terminus; a limit. 


Finis est amicabilis compositio et 
finalis concordia ex consensu et concor- 
dis domini regis vel justiciarum. Glan. 
tb. $8,¢.1. <A fine is an amicable settlement 
and decisive agreement by consent and agree- 
ment of our lord, the king, or his justices. 


Finis finem litibus imponit. <A fine 


puts an end to litigation. 3 Inst. 78. 


Finis rei attendendus est. 3 Inst. 51. 
The end of a thing is to be attended to. 


Finis unius diei est principium alteri- 
us. 2 Bulst. 305. The end of one day is 
the beginning of another. 


FINITIO. An ending; death, as the end 
of life. Blount; Cowell. 


FINIUM REGUNDORUM ACTIO, 
In the civil law. Action for regulating 
boundaries. The name of an action which 
lay between those who had lands bordering 
on euch other, to settle disputed boundaries. 
Mackeld. Rom. Law, § 499. 


FINORS. Those that pnrify gold and 
Silver, and part them by fire and water from 
coarser metals; and therefore, In the statute 
of 4 Hen. VII. c. 2, they are also called 
“parters.” Termes de la Ley. 


FIRDFARE. Sax. In old English law. 
A summoning forth to a military expedition, 
(indictio ad profectionem militarem.) Spel- 
mun. 


FIRDIRINGA. Sax. A preparation to 
go inte the army. Leg, Hen, I. 


FIRDSOCNE. Sax. In old English 
law. Exemption from military seryice. 
Spelman, 


FIRDWITE. In old English law. A 
fine for refusing military service, (muleta 
detrectantis militiam.) Spelman. 

A fine imposed for murder committed in 
thearmy; an acquittance of suchfine. Fleta, 
lib. 1,.¢. 47. 


FIRE. The effect of combustion. The 
juridical meaning of the word does nut differ 
from the vernacular. 1 Pars. Mar. Law, 261, 
et seq. 


FIRE AND SWORD, LETTERS OF 496 


FIRE AND SWORD, LETTERS OF. 
{In old Scoteh law. Letters issued from the 
privy council in Scotland, aidressed to the 
sheriff of the county, authorizing him te call 
for the assistance of the county to dispossess 
a tenant retaining possession, contrary to the 
order of a judge or the sentenve of a court. 
Wharton, ° 


FIRE-ARMS. This word comprises all 
sorts of guns, fowling-pieces, blunderbusses, 
pistols, ete. 


FIREBARE. A beacon or high tower by 
the seaside, wherein are continua] lights, 
either to direct sailors in the night, or to give 
warning of the approach olf an enemy. 
Cowell. 


FIRE-BOTE. An allowance of wood or 
estovers to maintain competent firing for the 
tenant. A sufficient allowance of wood to 
burn in a house. 1 Washb. Real Prop. 99. 


FIRE INSURANCE. A contract of 
insurance by whieh the underwriter, in con- 
sideration of the premium, undertakes to iu- 
demnify the insured against all losses in lis 
houses, buildings, furniture, ships in port, 
or merchandise, by means of accidental fire 
happening within a prescribed period. 8 
Kent, Comm. 370. 


FIRE ORDEAL. In Saxon and old En- 
glish law. Theordeal by fire or red-hot iron, 
which was performed either by taking up in 
the hand a piece of red-hot iron, of one, two, 
or three pounds weight, or by walking bare- 
foot, and blindfolded over nine red-hot plow- 
shares, laid lengthwise al unequal distances, 
4 Bl. Comm. 843; Cowell. 


FIRE POLICY. A contract of insurance, 
by which, in consideration of a single or pe- 
Tiodical payment of premium, (as the cuse 
may be,) the company engages to pay to the 
assured such loss as may occur by fire to his 
property therein described, within the period 
or periods therein specified, toan amount not 
exceeding a particular sum lixed for that pur- 
pose by the policy. 2 Steph. Comm. 180. 


FIRE-PROCF. To say of any article 
that itis “fire-proof” conveys no other idea 
than that the material out of witich it is 
formed is incombustible. ‘To say of a build- 
ing that it is fire-proof excludes the idea that 
it is of wood, and necessarily implies that it 
is of some aubstance fitted for the erection of 
fire-proof buildings. To say ofa certain por- 
tion ofa building that it is Hre-proof sug- 
gests a comparisca between Lhat portion and 


FIRMITAS 


other parts of the building not so character 
ized, and warrants the conelusion that it 
a different material. 102 N, Y. 459, 7 
EK. Rep. 321. 


FIREIN. A measure containing nine 
gallons; also a weight of fifty-six pounis 
avoirdupois, used in weighing butter and 
cheese. ‘ 


FIRLOT. A Scotch measure of capacity, 
containing two gallons and a pint. Spel- 
man. 


FIRM. A partnership; the group of per 
sons constituting a partnership. 
The name or title under which the mem- 
bers of a partnership transact business. 


FIRMA. In old English law. The con. 
tract of lease or letting; also the rent (or 
farm) reserved upon a lease of lands, which was 
frequently payable in provisions, but some- 
times in money, in whieh latter case it was 
called “alba firma,” white rent. A messuage, 
with the house and garden belonging thereta, 
Also provision for the table: a banquet; a 
tribute towards the entertainment of the king 
for one night. 


FIRMA FEODI., In old English law. A 
farm or lease of afes; a fee-farm. 


FIRMAN, An Asiatic word denoting 
a deeree or grant of privileges, or passport to 
a traveler, 


FERMARATIO. The right of a tenant 
to his lands and tenements, Cowell. 


FIRMARIUM. Inoildrecords. A place 
in monusteries, and elsewhere, where the 
poor were received and supplied with food, 
Spelman. Hence the word “infirmary.” 


FIRMARIUS. L. Lat. A fermor. A 
lessee of aterm. Firmarti comprehend all 
such as hold by lease for life or lives or for 
year, by deed or without deed. 2 Inst. 144, 
145; 1 Washb. Real Prop. 107. 


FIBMATIO. The doe season. Also a 
supplying with food. Cowell. d 


FIRME. In old records. A farm. 


Firmior et potentior est operatio le- 
gis quam dispositio hominis. The opera- 
tion of the law is firmer and more powerful 
[or efficacious] than the disposition of man. 
Co. Litt. 102. 


FIRMITAS. In old Engiish law. An 
assurance of some privilege, by deed or char- 
ter. 


FIRMURA 


RMURA. In old English law. Lib- 
oscour and repaira mill-dam, and carry 
the soil, ete. Blount. 


FIRST-CLASS MISDEMEANANT. 
nEnglish law. Under the prisons act (28 
29 Vict. c. 126, § 67) prisoners in the 
nty, city, and borough prisons convicted 
misdemeanor, and not sentenced to hard 
or, are divided into two classes, one of 


is in the discretion of the court to order that 
“Bich 2 prisoner be treated as a misdemeanant 
of the first division, usually called “first- 
class misdemeanant,” and as such not to be 
‘deemed a criminal prisoner, 7. e., a prisoner 
‘eonvicted of acrime. Bouvier. 


_ FIRST FRUITS. In English ecclesi- 

‘astical law. The first year’s whole profits 
of every benefice or spiritual living, anciently 
" piid by the incumbent to the pope, but after- 
wards transferred to the fund called “Queen 
Anna’s Bounty,” for inereasing the revenue 
fram poor livings. 

In feudal law. One year's profits of land 
whieh beionged to the king on the death of a 
tenant i capite; otherwise called “primer 
seisin.” Ona ot the incidents to the old feud- 
aitenures. 2B). Comm. 66, 67. 


FIRST IMPRESSION. A case is said 
tw be “of the first impression” when it pre- 
genta an entirely novel question of law for 
the decision ef the court, and cannot be gov- 
erned by any existing precedent. 


FIRST PURCIIASER. In the law of 
descent, this term signifies the ancestor who 
first acquired (in any other manner than by 

inheritance) the estate which still remains in 
his family or descendants. 


h FISC. An Anglicized form of the Latin 
“fiseus,” (which see.) 


FISCAL. Belonging to the fise, or pub- 
lic treasury. Relating to accounts or the 
management of revenue. 


FISCAL AGENT. This term does not 
necessarily mean depositary of the public 
funds, so as, by the simple use of it in a 

| statute, without any directions in this re- 
spect, to make it the duty of the state treas- 
urer to deposit with him any wioneys in the 
treasury, 27 La. Ann. 29. 


_ FISCAL JUDGE. A public officer 

 Bamed in the laws of the Ripuarians and 

some other Germanic peoples, apparently the 

game as the “@raf,” “reeve,” “eomes,” or 

“count,” and so called because charged with 
SM DICT. LAW—o2 


497 


th is called the “first division;” and it | 


FISHERY LAWS 


the collection of public revenues, either di- 
rectly or by the imposition of fines. See 
Spelman, voc. “Grafio.” 


FISCUS. In Roman law. The treasu- 
ry of the prince or emperor, as distinguished 
from “erariwin,” which was the treasury of 
the state. Spelman. 

The treasury or property of the state, as 
distinguished from the private property of 
the sovereign. 

In English law. The king’s treasury, as 
the repository of forfeited property. 

The treasury of a noble, or of any private 
person. Spelman. 


FISH. An animal which inhabits the 
water, breathes by means of gills, swims by 
the aid of fins, and is oviparous. 


FISH COMMISSIONER. A public of- 
ficer of the United States, created by act of 
congress of February 9, 1871, whose duiies 
principally concern the preservation and in- 
crease throughout the country of fish suita- 
ble for food. Rev. St. § 4395. 


FISH ROYAL. These were the whale 
and the sturgeon, which, when thrown ashore 
or caught near the coastof England, became 
the property of the king by virtue of his pre- G 
rogative and in recompense for his protecting 
the shore from pirates and robbers. Brown; 

1 BI. Comm. 290. 


FISHERY. A place prepared for catch- 
ing fish with nets or hooks. This is com- 
monly applied to the place of drawing a seine 
or net. 1 Whart. 181, 132. 

A right or liberty of taking fish; a species 
of incorporeal hereditament, anciently termed | 
“piscary,” of which there are several kinds, 
2 Bl. Comm. 34, 39; 3 Kent, Comm. 409-418. 

A free fishery is said to be a franchise in the 
hands of a subject, existing by grant or prescrip- 
tion, distinct from an ownership in the soil. Itis J 
an exclusive right, and applies to a public naviga- 
ble river, without any right in the soil. 3 Kent, 
Comm. 329, 

A common of fishery is not an exclusive right, 
butone enjoyed in common with certain other per- 
sons. 3 Kent, Comm, 329, K 

A several jishery is one by which the party 
claiming it has the right of fishing, independently 
of all others, so that no person cun haye a co-ex- 
tensive right with him in the object claimed; but 
a partial and independent right in another, or a 
limited liberty, does not derogate from the right 
of the owner. 5 Burrows, 2814. 


FISHERY LAWS. A series of statutes 
passed in England for the reculation of fish- 
ing, especially to prevent the destruction of 
fish during the breeding season, and of small 


FISHGARTH 


fish, spawn, etc., and the employment of im- 
proper modes of taking fish. 3Steph. Comm. 
165. 


FISHGARTH. A dam or wearinariver 
for taking fish. Cowell. 


FISHING BILL. A term descriptive of 
a ill in equity which seeks a discovery upon 
gencral, loose, and vague allegations, Story, 
Eq. Pl. § 325; 82 Fed. Rep. 263. 


FISK. In Scotch law. The fisews or fise. 
The revenue of the crown. Generally used 
of the personal estate of a rebel which has 
been forfeited to the crown. Bell. 


FISTUCA, or FESTUCA. In old En- 
glish law. The rod or wand, by the delivery 
of which the property in land was formerly 
transferred in making afeoffment. Called, 
also, “baculum,” “virga,” and “fustis.” 
Spelman, 


FISTULA. In thecivil law. 
eonveying water. Dig. 5, 2, 18. 


FITZ. A Norman word, meaning “son.” 
It is used in law and genealogy; as Fiizher- 
bert, the son of Herbert; Fitzjames, the son 
of James; Fitzroy, the son of the king. It 
was originally applied to illegitimate children, 


A pipe for 


FIVE-MILE ACT. Anactof parliament, | 


passed in 1665, against non-conformists, 
whereby ministers of that body were pro- 
hibited from coming within five miles of any 


corporate town, or place where they had | 


preached or lectured. Brown. 


FIX. To liquidate or render certain. 
To fasten a Nability upon one. To trans- 
form a possible or contingent liability into a 
present and definite liability. 


FIXING BAIL. In practice. Render- 
ing absolute the liability of special bail. 


FIXTURE. A fixture isa personal chat- 
tel substantially affixed to the land, but which 
may afterwards be lawfully removed there- 
froin by the party affixing it, or his repre- 
sentative, withont the consent of the owner 
of the freehold. 8 Ney. 82; 18 Ind. 281; 8 
Towa, 544. 


Personal chattels which have been annexed to 
land, and which may be afterwards severed and 
removed by the party who has annexed them, or 
his personal representative, againstthe will of the 
owner of the freehold. Ferard, Fixt. 2; Bouvier. 

The word “fixtures” has acquired the peculiar 
meaning of chattels which have bean annexed to 
the freshold, but which are removable at the will 
of the person who annexed them. 1 Cromp., M. & 
R. 266. 

“Fixtures” does not necessarily import things 


498 FLAG OF THE UNITED STATES 


affixed to the freehold. The word isa modern one, 
and is generally understood to comprehend any 
article which atenant has the power toremoye. 6 
Mees. & W.i74; 30 Pa, St. 185, 189. 


Chattels which, by being physically an- 
nexed or affixed to real estate, become a part 
of and accessory to the freehold, and the 
property of the owner of the land. Hill. 

Things fixed or affixed to other things. The rule 
of law regarding them is that which is expressed 
inthe maxim, “aeccessin cedit principal, ” “the ac 
cessory goes with, and as part of, the principal 
subject-matter.” Brown. 

A thing is deemed to be affixed to land when itis 
attached to it by roots, as in the case of trees, 
vines, or shrubs; or imbedded in it, as in the cass 
of walls; or permanently resting upon it, as in tha 
ease of buildings; or permanently attached to 
what is thus permanent, as by means of cement, 
plaster, nails, bolts, or screws, Civil Code Cal 
§ 660. 

That which is fixed or attached to some 
thing permanently as an appendage, and not 
removable. Webster. 

That which is fixed; a pieceof furniture fixed to 
a house, as distinguished from movable; something 
fixed orimmovable. Worcester. h 

The general result seems to ba that three views 
have been taken. One is that “fixture” means 
something which has been affixed to the realty, so 
as to become a part of it; it is fixed, irremovable. 
An opposite viow is that “fixture” means some- 
thing which appears to be a part of the realty, but 
is not fully so; it is only a chattel fixed to it, but 
removable. An intermediate view is that “fixture” 
means a chattel annexed, aflixed, to the realty, but 
imports nothing as to whether itisremoyable; that 
is to be determined by considering its circum- 
stancesand the relation of the parties. Abbott. 


FLACO, A place covered with standing 
water. 


FLAG. A national standard on which 
are certain emblems; an ensign; a banner. 
It is carried by soldiers, ships, etc., and com. 
monly displayed at forts and many other suit- 
able places. 


FLAG, DUTY OF THE. This was an 
ancient ceremony in acknowledgment of 
British sovereignty over the British seas, by 
which a foreign vessel struck her Hag and 
lowered her top-sail on meeting the British 
flag. 


FLAG OF THE UNITED STATES. 
By the act entitled “An act to establish the 
flag of the United States,” (Rev. St. §§ 1791, 
1792,) it is provided “that, from and after 
the fourth day of July next, the flag of tha 
United States be thirteen horizontal stripes, 
alternate red and white; that the union be 
twenty stars, white in a blue field; that, on 
the admission of every new state into the > 
Union, one star be added to the union of the 


FLAGELLAT 


flag; andthat such addition shall take effect 
on the fourth day of July then next succeed- 
_ ing such admission.” 


FLAGELLAT., Whipped; scourged. An 
entry on old Scotch records. 1 Pitc. Crim. 
Tewpt. 1 p- fis 


FLAGRANS. Burning; raging; in act- 
val perpetration. #lagrons bellum, a war 
actually going on. 


FLAGRANS CRIMEN. In Roman 
law. A fresh or recent crime. This term 
designated a crime in the very act of its 
| commission, or while it was of recent occur- 
} rence. 


| FLAGRANT DELIT. In French law. 

It A crime which is in actual process of per- 
petration or which has just been committed. 
Code d’Instr. Crim, art. 41. 


} FLAGRANT NECESSITY. A case of 
urgency rendering lawful an otherwise illegal 
act, as an assault to remove a man from 

_ impending danger. 


j FLAGRANTE BELLO. During an 
| actual state of war. 


FLAGRANTE DELICTO. 
_ actof committing the crime. 
307. 


FLASH CHECE. A check drawn 
upon a banker by a person who has no funds 
at the banker’s, and knows that such is the 
case. 


In the very 
4 Bl. Comm. 


FLAT. A place covered with water too 
shallow for navigation with vessels ordina- 


rily used for commercial purposes. 34 Conn. 
370; 7 Cush, 195. 
FLAVIANUM JUS. In Roman 


law. ‘The title of a book containing the 
forms of actions, published by Cneius Fla- 
vius, A. U. ©. 449, Mackeld. Rom. Law, 
§ 39. Calvin. 


FLECTA. 
Cowell. 


A feathered or fleet arrow. 


FLEDWITE. A discharge or freedom 
from amercements where one, having been 
an outlawed fugitive, cometh to the place of 
our Jord of his own accord. Termes de la 
Ley. 

The liberty to hold court and take up 
the amercements for beating and striking. 
Cowell. 

The fine set on a fugilive as the price of 
abtaining the king’s freedom. Spelman, 


499 


FLOATABLE 


FLEE FROM JUSTICE. To leave 
one’s home, residence, or known place of 
abode, or to conceal one’s self therein, with 
intent, in either case, to avoid detection or 
punishment for some publi¢ offense. 3 Dill. 
381; 48 Mo. 240. 


“FLEE TO THE WALL.” <A meta- 
phorical expression, used in connection with 
homicide done in self-defense, signifying the 
exhaustion of every possible means of es- 
cape, or of averting the assault, before kill- 
ing the assailant. 


FLEET. A place where the tide flows; 
a creek, or inlet of water; a company of 
ships or navy; a prison in London, (so ealled 
from a river or ditch formerly in its vicini- 
ty,) now abolished by 5 & 6 Vict. ce. 22. 


FLEM. In Saxon and old English law. 
A fugitive: boncdman or villein. Spelman, 


The privilege of having the goods and fines 
of fugitives. 


FLEMENE FRIT, FLEMENES 
FRINTHE—FLYMENA FRYNTHE. 
The reception or relief of a fugitive or out- 
law. Jacob. 


FLEMESWITE. The possession of the G 
goods of fugitives. Fleta, lib. 1, ¢c. 147. 


FLET. In Saxon law. 
home. 


Land; a house; 


FLETA. The name given to an ancient H 
treatise on the laws of England, founded 
mainly upon the writings of Bracton and 
Glanville, and supposed to have been written 
in the time of Edw. 1, The author is un- | 
known, but itis surmised that he was a judge 
or learned lawyer who was at that time con- 
fined in the Fleet prison, whence the name 
of the book. 


A fine J 
Spel- 


FLICHWITE. In Saxon law. 
on account of brawls and quarrels. 
man, 


FLIGHT. In criminal law. The act of K 
one under accusation, who evades the law by 
voluntarily withdrawing himself. It is pre- 
sumptive evidence of guilt. 


FLOAT. In American land law, espe- L 
cially in the western states. A certificate 
authorizing the entry, by the holder, of a cer- 
tain quantity of land. 20 How. 501, 504. 


FLOATABLE. Used for floating. <A M 
floatable stream is a stream used for floating 
logs, rafts, etc. 2 Mich. 519. 


FLOATING CAPITAL 


FLOATING CAPITAT, (or circulating 
capital.) The capital which is consumed at 
each operation of production and reappeurs 
transformed into new pruducts. Ateach sale 
of these products the capital is represented in 
cash, and itis from its transformations that 
profit is derived. Floating capital includes 
raw materials destined for fabrication, such 
as wool and flax, products in the warehouses 
of manufacturers or merchants, such as cloth 
and linen, and money for wages, and stores. 
De Laveleye, Pol. Ec. 

Capital retained for the purpose of meet- 
ing current expenditure. 


FLOATING DEBT. By this term is 
meant that mass of lawful and valid claims 
against the corporation for the payment of 
which there is no money in the corporate 
treasury specifically designed, nor any taxa- 
tion nor other means of providing money to 
pay particularly provided. 71N. Y. 874. 

Debt not in the form of bonds or stocks 
bearing regular interest. Pub. St. Muss. 
1882, p. 1290. 


FLODE-MARK. Flood-mark, high-wa- 
ter mark. The mark which the sea, at flow- 
ing water and highest tide, makes on the 
shore. Blount. 


FLOOR. A section ofa building between 
horizontal planes. 145 Mass. 1, 12 N. E. 
Rep. 401. 

A term used metaphorically, in parlia- 
mentary practice, to denote the exclusive 
right to address the body in session. A 
member who has been recognized by the 
chairmuan, and who is in order, is said to “have 
the floor,” until his remarks are concluded. 
Similarly, the “floor of the house” means the 
main part of the hall where the members sit, 
as distinguished from the galleries, or from 
the corridors or lobbies. 

In England, the floor of a court is that 
part bet ween the judge’s bench and the front 
row of counsel. Litigants appearing in per- 
son, in the high court or court of appeal, are 
supposed to address the court from the floor. 


FLORENTINE PANDECTS. A copy 
of the Pandects discovered accidentally about 
the year 11387, at Amalphi, a town in Italy, 
near Salerno. From Amalphi, the copy 
found its way to Pisa, and, Pisa having sub- 
mitted tothe Florentines in 1406, the copy 
was removed in great triumph to Florence. 
By direction of the magistrates of the town, 
it was immediately bound in a superb man- 
ner, and deposited in a costly chest. For- 
merly, these Pandects were shown only by 


500 


FLUVIUS 


torch-light, in the presence of two magia- 
trates, and two Cisterciun monks, with their 
heads uncovered. They have been succes. 
sively collated by Politian, Bolognini, and 
Antonius Augustinus. An exact copy of 
them was published in 1553 by Franciscus 
Taurellus. For its accuracy and beauty, 
this edition ranks high among the ornaments 
of the press. Brencliman, who collated the 
manuscript about 1710, reters it fo the sixth 
century. Butl. Hor. Jur. 90, 91. 


FLORIN. A coin originally made at 
Florence, now of the value of about two En- 
glish shillings. 


FLOTAGEHS. 1. Such things as by acci- 
dent swim on the top of great rivers or the 
sea. Cowell. 

2. A commission paid to water bailiffs. 
Cun. Dict. 


FLOTSAM, FLOTSAN. <A name for 
the goods which foat upon the sea when cast 
overboard for the safety of the ship, or when 
aship is sunk. Distinguished from “jet 
sam” and “ligan.” Bract. lib, 2, ¢. 5; 5 Coke, 
106; 1 Bl. Comm. 292. 


FLOUD-MARKE. In old English law. 
High-water mark; flood-mark, 1 And. 88,89. 


FLOWING LANDS. This term has 
acquired a definite and specific meaning in 
law. It commonly imports raising and set- 
ting back water on another’s land, by a dam 
placed across a stream or water-course which 
is the natural drain and outlet for surplus 
water on such land. 2 Gray, 235. 


FLUCTUS, Flood; flood-tide. Bract. 
fol.. 255. 
FLUMEN. In Roman law. A servi- 


tude which consists in the right to conduct. 
the rain-water, collected from the roof and 
carried off by the gutters, onto the house or 
ground of one’s neighbor. Mackeld. Rom, 
Law, § 317; Ersk. Inst. 2, 9, 9. Also a riv- 
er or stream. 


In old English law. 


Flood; flood-tide, 


Flumina et portus publica sunt, 
ideoque jus piscandi omnibus commune 
est. Rivers and ports are public. There. 
fore the right of fishing there is common to 
all. Day. Ir. K. B. 55; Branch, Prine. 


FLUMINA VOLUCRES. 
water-fowl, 11 East, 571, note. 


Wild fowl: 


FLUVIUS. A river; a public river: 
flood; flood-tide. 


FLUXUS. In old English law. Flow. 
Per fiuzum et refluaum maris, by the flow 
and reflow of the sea. Dual. pl. 10. 


FLY FOR IT. On a criminal trial in 
former times, it was usual after a verdict of 
not wuilty to inquire also, “Did he fly for it ?” 
Tiiis practice was abolished by the 7 &8 Geo. 
TV. c. 28,§ 5. Wharton. 


FLYING SWITCH. In railroading, a 
flying switch is made by uncoupling the cars 
from the engine while in motion, and throw- 
ing the cars onto the side track, by turning 
the switch, after the engine has passed it 
upon the main track. 29 Iowa, 39. See, 
also, 82 N. ¥. 597, note. 


FLYMA. Inold English law. A run- 
away; fugitive; one escaped from justice, or 
who has no “hlaford.” 

FLYMAWN-FRYMTH. In old English 
law. The offense of harboring a fugitive, 
the penalty attached to which was one of the 
rights of the crown. 

FOCAGE. House-bote; fire-bote. Cowell. 


FOCALE. In old English law. Fire. 
wood, The right of taking wood for the fire. 
Fire-bote. Cunningham. 


FODDER. Food for horses or cattle. In 
fendal law, the term also denoted a preroga- 
tive of the prince to be provided with corn, 
étc., for his horses by his subjects in his wars. 


FODERTORIUM. Provisions to be paid 
by custom to the royal purveyors. Cowell. 


FODERUM. See Foppver. 
FODINA. Co. Litt. 6a. 


FGsDUS. In international law. A trea- 
ty; a league; a compact. 


FEMINA VIRO CO-OPERTA. A 
married woman; a feme covert. 


A mine, 


Feemins ab omnibus officiis civilibus 
vel publicis remote sunt. Women are 
exeluded from all civil and public charges or 
offices. Dig. 50, 17,2; 1 Exch. 645; 6 Mees. 
& W. 216. 


Fomine non sunt capaces de publicis 
officiis. Jenk. Cent. 237. Women are not 
admissible to public offices. 


FOGSNERATION. Lending money at In- 
terest; the act of putting out money to usury. 


FOANUS NAUTICUM. In the civil 
law. Nautical or maritime interest. An ex- 
travrdinary rate of interest agreed to be paid 


FLUAUS 501 


FOLC-LAND 


for the loan of money on the hazard of a voy- 
age; sometimes called “usura maritima.” 
Dig. 22, 2; Code, 4, 33; 2 Bl. Comm. 458. 
The extraordinary rate of interest, proportioned 
to the risk, demanded by a person lending money 
ona ship, or on “bottomry,” as itis termed. The 
agreement for such a rate of interest is also called 
“fenus nauticum.” (2 Bl Comm. 458; 2 Steph. 
Comm. 93.) Mozley & Whitley. 
FOSSA. In old records. 
2 Mon. Angl. 9065; Cowell. 


FOQ:TICIDE. In medical jurisprudence, 
Destruction of the fetus; the act by which 
criminal abortion is produced. 1Beck, Med. 
Jur. 288; Guy, Med. Jur. 183. 


FOTURA. In the civil law. The prod- 
uce of animals, and the fruit of other prop- 
erty, which are acquired to the owner of such 
animals and property by virtue of his right. 
Bowyer, Mod. Civil Law, c. 14, p. 81. 


Fa3TUS. Inmedical jurisprudence. An 
unborn child. An infant ta venire sa mire. 


FOGAGIUM. Inold English law. Fog- 
age or fog; a kind of rank grass of late growth, 
and not eateninsummer. Spelman; Cowell. 


FOI. In French feudal law. Faith: 
fealty. Guyot, Inst. Feed. c. 2. 


Grass; herbage. 


FOINESUN, In old English law. The 
fawning of deer. Spelman. 

FOIRFAULT. In old Scotch law. To 
forfeit. 1 Ilow. State Tr. 927. 


FOIRTHOCHT. Inold Scotch law. 
Forethought; premeditated. 1 Pite. Crim, 
Tr. pt. 1, p. 90. 


FOITERERS. Vagabonds. Blount. 


FOLC-GEMOTE. In Saxon law. A 
general assembly of the peaple in a town or 
shire. It appears to have had judicial fune- 
tions of a limited nature, and also to have 
discharged political offices, such as deliberat- 
ing upon the affairs of the commonwealth or 
complaining of misgovernment, and proba- 
bly possessed considerable powers of local 
self-government. Ths name was also given 
to any sort of a popnlar assembly. See Spel- 
man; Manwoed; Cunningham. 


FOLC-LAND. 
tiie folk or people. 
people or the public. 


Folc-land was the property of the community. 
It might be occupied in common, or possessed in 
severalty; and, in the latter case, it was probably 
parceled out to individuals in the fole-gemote or 
court of the district, and the grant sanctioned by 
the freemen who were there present. But, while 
it continued to be folc-land, it could not be alienat- 


In Saxon law, J.and of 
Land belonging to the 


FOLC-MOTE 


ad in perpetuity; and therefore, on the expiration ' proceedings, means ane hundred words, counting | 


of the term for which it had been granted, it re- 
verted to the community, and was again distributed 
by the same authority. It was subject ic many 
burdens and exactions from which boe-land was 
exempt. Wharton. 


FOLC-MOTH. A general assembly of 
the people, under the Saxons. See Fouc- 
GEMOTE, 


FOLC-RIGHT. The common right of 
ail the people. 1 G1. Comm. 65, 67. 

The jus commune, or common law, men- 
tioned in the laws of King Edward the EI- 
der, declaring the same equal right, law, or 
justice to be dlue to persons of all degrees. 
Wharton. 


FOLD-COURSE, In Englishlaw. Land 
to which the sole right of folding the cattle 
of others isappurlenant. Sometimes it means 
merely such right of folding. The right of 
folding on another's land. which is called 
“common foldage.” Co, Litt. 62, note 1. 


FOLDAGE. A privilege possessed in 
some places by the lord of a manor, which 
consists in the right of having his tenant’s 
sheep to feed on his fields, so a3 to manure the 
land, The name of foldage is also given in 
parts of Norfolk to the customary fee paid to 
the lord for exemption at certain times from 
this duty. Elton, Com. 45, 46. 


FOLGARII. Menial servants; followers. 
Bract. 


FOLGHERE. Inold English law. A 
freeman, who has no house or dwelling of 
his own, but is the follower or retainer of 
another, (deorthfwst,) for whom he performs 
certain predial services. 


FOLGOTH. Official dignity. 


FOLIO, 1. A leaf. In the ancient law- 
books it was the eustom to number the leaves, 
instead of the pages; hence a folio would in- 
elude both sides of the leaf, or two pages. 
The references to these books are made by the 
number of the folio, the letters “a” and “b” 
being added to show which of the two pages 
ig intended; thus “racton, fol. 1004.” 

2, A large size of book, the page being ob- 
tained by folding the sheet of paper once only 
in the binding. Many of the ancient law- 
books are folios. 

5. In computing the length of written legal 
documents, the term “folio” denotes a certain 
number of words, fixed by statute in some 
stutes at one hundred. 


The ierm “folio,” when used as a measure for 
computing fees or compensation, or in any legal 


502 


| amercement for not cutting out the ball or 


| have the privilege of keeping dogs in the for- 
| est unlawed without punishment or conirol, 


| 
; 


FOR THAT 


every ficure necessarily used as a yume and any 
portion of a folio, when in the whole avatt or figure 
thera is not a complete folio, and when there is any 
excess over the last folio, shall be computed asa 
folio. Gen. St. Minn. 1878, o. 4, $1, par. 4 


FOLK-LAND; FOLK-MOTEH, See 


Fouce-Lanp; FoLc-GEMOoTE,., 


FONDS PERDUS, In French law. A 
capital is said to be invested @ fonds perdus 
when it is stipulated that in consideration of 
the payment of an amount as interest, higher 
than the normal rate, the lender shall be re 
paid his capitalin this manner. The borrow- 
er, after having paid the interest during the 
period determined, is free as regards the cap 
ital itself. Arg. Fr. Mere. Law, 560, 


FONSADERA. In Spanish law. Any 
tribute or Joan granted to the king for the 
purpose of enabling him to defray the ex- 
penses of a war. 


FONTAWNA. A fountain or spring. 
Braet. fol. 233. 


FOOT. 1. A measure of length contain. 
ing twelve inches or one-third of a yard. 

2. The base, bottom, or foundation of any- 
thing; and, hy metonomy, the end or termi- 
nation; as the foot ofa fine. 


FOOT OF THE FINE. The fifth part 
of the conclusion of a fine. It includes the 
whole matter, reciting the names of the par- 
ties, day, year, and place, and before whom 
it wag acknowledged or levied. 2 Bl, Comm, 
bol. 


FOOTGELD. In the forest law. <An 
cutting off the claws of a dog’s feet, (exped- 
itating him.) To be quit of footgeld is to 


Manwood,. 


FOOT-PRINTS. In the law of evidence, 
Impressions made upon earth, snow, or other 
surface by the feet of persons, or by the shoes, 
boots, or other covering of thefeet. Burrill, 
Cire. Ey, 204. 


FOR. In French law. A tribunal. Le 
for tntericur, the interior forum; the tribu- 
nal of conscience. Poth. Obi. pt.1,¢.1,§ 1, 
art. 3, § 4. 


FOR THAT, In pleading. Words used 

to introduce the allegations of a declaration, 

‘For that” is a positive allegation; “or that 
whereas” is a recital. Ham. N. P. 9. 


FOR THAT WHEREAS 


R THAT WHEREAS. In pleading. 
malt words introducing the statement of 
e plaintiff’s case, by way of recital, in his 
elaration, in all actions except trespass. 1 
r, Cler. 170; 1 Burrill, Pr. 127. In tres- 
where there was no recital, the expres- 
used was, “Forthat,” Id.; 1 Instr. Cler. 


FOR USE. 1. For the benefit or advan- 
tageofanother. Thus, where an assignee is 
‘obliged to sue in the name of his assignor, 
the suit is entitled “A. for use of B. v. C.” 

_ 2. For enjoyment or employment without 
destruction. A loan “for use” is one in 
which the bailee has the right to use and en- 
joy the article, but without consuming or de- 
stroying it, in which respect it differs from 
4 loan “for consumption.” 


“FOR WHOM IT MAY CONCERN.” 
In a policy of marine or fire insurance, this 
phrase indicates that the insurance is taken 
for the benefit of all persons (besides those 
named) who may have an insurable interest 
in the subject. 


FORAGE. Hay and straw for horses, 
particulurly in thearmy. Jacob, 


FORAGIUM. Straw when the corn is 
threshed out. Cowell, 


FORANEUS. One from without; a for- 
eigner; astranger. Calvin. 


FORATHE. In forest law. One who 
could make oath, % e., bear witness for an- 
other. Cowell; Spelman. 


FORBALCA. In old records, <A fore- 
balk; a balk (that is, an unplowed piece of 
land) lying forward or next the highway. 
Cowell. 


FORBANNITUS. A pirate; an outlaw; 
one banished. 


FORBARRER. L. Fr, 
preclude; hence, to estop. 


FORBATUDUS. In old English law. 
The aggressor slain in combat. Jacob. 


To bar out; to 


| FORBEARANCE. The act of abstaining 
from proceeding against a delinquent debtor; 
delay in exacting the enforcement of a right; 
indulgence granted to a debtor, 

Refraining from action. ‘Theterm is used 
in this sense, in general jurisprudence, in 
contradistinction to “act.” 


FORCE. Power dynamically considered, 
that is, in motion or in action; constraining 
power, compulsion; strength directed to an 


508 


FORCHEAPUM 


end. Usually the word occurs in such con- 
nections as to show that unluwful or wrong- 
ful action is meant, 

Unlawful violence. It is either simple, as 
entering upon another’s possession, without 
doing any other unlawful aet; compound, 
when some other violence is committed, 
which of itself alone is criminal; or implied, 
ag in every trespass, rescous, or disseisin. 

Power statically considered; that is, at rest, 
or latent, but capable of being called into 
activity upon occasion for its exercise. Effi- 
cacy; legal validity. This is the meaning 
when we say that a statute or a contract is 
“in force.” 

In old English law. A technical term 
applied to a species of accessary before the 
fact. 


In Seotch law. Bell. 


FORCE AND ARMS. A phrase used 
in declarations of trespass and in indict- 
ments, but now unnecessary in declarations, 
to denote that the act compliined of was done 
with violence, 2 Chit. Pl. 846, 850. 


Cvercion; duress. 


FORCE AND FEAR, called also “vi 
metugue,” means that any contract or act ex- 
torted under the pressure of force (vis) or 
under the influence of fear (metus) is voidable G 
on that ground, provided, of course, that the 
force or the fear was such a3 influenced the 
party. Brown. 


FORCE MAJEURE. Fr. In the law H 
of insuranee. Superior or irresistible force. 
Emerig. Tr. des Ass. ¢. 12. 


FORCED HEIRS. InLouisiana. Those 
persons whom the testator or donor cannot | 
deprive of the portion of his estate reserved 
for them by law, except in cases where he 
has a just cause to disinherit them. Civil 
Code La. art. 1495. 


FORCED SALE. In practice. A sale 
made at the time and in the manner pre- 
scribed by law, in virtue of execution issued 
on a judgment already rendered bya court of 
competent jurisdiction; a sale made under K 
the process of the court, and in the mode pre- 
acribed by law. 6 Tex. 110. 

A foreed sale is a sale against the consent of the 
owner. The term should not be deemed to em- 
brace a sale under a powerin a mortgage 15 Fla. L 
336. 

FORCES. The military and naval power 
of the country. 


FORCHEAPUM. Pre-emption; forestall. Mi 
ing the market. Jacob. 


FORCIBLE DETAINER 


FORCIBLE DETAINER. The offense 
of violently keeping possession of lands and 
tenements, with menaces, force, and arms, 
and without the authority of law. 4 BL. 
Comin. 148; 4 Steph. Comm, 280. 

Forcible detainer may ensue upon a peace- 
able entry, as well as upon a forcible entry; 
but it is most commonly spoken of in the 
phrase “forcible entry and detainer.” 


FORCIBLE ENTRY. An offense 
against the public peace, or private wrong, 
committed by violently taking possession of 
lands and tenements with menaces, force, 
and arms, against the will of those entitled 
to the possession, and without the authority 
oflaw. 4 Bl. Coram. 148; 4 Steph. Comm. 
280; Code Ga. 1882, § 4524. 

Every person is guilty of forcible entry 
who either (1) by breaking open doors, win- 
dows, or other parts of a house, or by any 
kind of violence or circumstance of terror, 
enters upon or into any real property; or (2) 
who, after entering peaceably upon real prop- 
erty, turns out by force, threats, or menacing 
conduct the party in possession, Code Civil 
Proe, Cal. § 1159. 


FORDA. Inoldrecords, <A ford or shal- 
low, made by damming or penning up the 
water. Cowell, 


FORDAL. A butt or headland, jutting 
out upon other land. Cowell. 


FORDANNO. In old European law. 
He who first assaulted another. Spelman. 


FORDIKA. Im» old records, Grass or 
herbage growing on the edge or bank of 


dykes or ditches, Cowell. 
FORE. Sax. Before. Fr. Out. Kel- 
ham. 


FORECLOSE. To shut ont; to bar. 
Used of the process of destroying an equity 
of redemption existing in a mortgagor. 


FORECLOSURE, A process in chancery 
by which all further right existing in a mort- 
gagor to redeem the estate is defeated and 
lost to him, and the estate becomes the abso- 
lute property of the mortgagee; being appli- 
cable when the mortgagor has forfeited his 
estate by non-payment of the money due on 
the mortgage at the time appointed, but still 
retains the equity of redemption. 2 Washb. 
Real Prop. 2387. 

The term is also loosely applied to any of 
the various methods, statutory or otherwise, 
known in different jurisdictions, of enforcing 


504 


a 


FOREIGN ATTACHMENT 


payment of the debt secured by a mortgage, — 
by taking and selling the mortgaged estate, 

Foreclosure is also applied to proceedings 
founded upon some other liens; thus thera 
are proceedings to foreclose a mechanie’s 
lien. 


FOREBFAULT. 
feit; to lose. 


In Scotch law. To for 


FOREGIFT. A premium for a lease. 


FOREGOERS. Royal purveyors. 26 
Edw. Ill. c, 6. 


FOREHAND RENT. In English law. 
Rent payable in advance; or, more properly, 
a species of premium or bonus paid by the 
tenant on the making of the lease, and puar- 
ticularly on the renewal of leases by eeclesi- 
astical corporations. 


FOREIGN. Belonging toanother nation 
or country; belonging or attached to another 
jurisdiction; made, done, or rendered in an- 
other state or jurisdiction; subject to another 
jurisdiction; operating or solvable in another 
territory; extrinsic; outside; extraordinary. 


FOREIGN ADMINISTRATOR. One 
appointed or qualified under the laws of a 
foreign state or country, where the deceden* 
was domiciled. 


FOREIGN ANSWER. In old English 
practice. An answer which was not triable 
in the county where it was made. (St. 15 
Hen, VI. c. 5.) Blount. 


FOREIGN APPOSER. An officer in 
the exchequer who examines the sheriff's es- 
treats, comparing them with the records, 
and apposeth (interrogates) the sheriff what 
he says to each particular sum therein. 4 
Inst. 107; Blount; Cowell. 


FOREIGN ASSIGNMENT. An as- 
signment made in a foreign country, or in 
another state. 2 Kent, Comm. 405, et seq. 


FOREIGN ATTACHMENT. In 
American law. <A process by which the 
property (lying within the jurisdiction of the 
court) of an absent or non-resident debtor is 
seized, in order to compel his appearance, or 
to satisfy the judgment that may be ren- 
dered, so far as the property goes. 

In English law. A custom which pre 
vails in the city of London, whereby a debt 
owing to adefendant sued in the court of the 
mayor or sheriff may be attached in the hands 
of the debtor. 


¥ BILL OF EXCHANGE 


IGN BILL OF EXCHANGE. 
| of exchange drawn in one state or 
y, upon a foreign state or country. 

bill of exchange drawn in one coun- 
upon another country not governed by 
‘same homogeneous laws, or not governed 
ihout by the same municipal laws. 
A bill of exchange drawn in one of the 
Ml States upon a person residing in an- 
stuteisa foreign bill. SeeStory, Bills, 
3 2 Pet. 586; 3 Kent, Comm. 94, note. 


_ FOREIGN BOUGHT AND SOLD. 


judicial to sellers of cattle in Smithfield, 
abolished. Wharton. 


FOREIGN CHARITY. Onecreated or 
endowed in a state or country foreign to that 
‘of the domicile of the benefactor. 84 N. J. 


Eq. 101. 


FOREIGN COINS. Coins issued as 
money under the authority of a foreign gov- 
ernment. As to their valuation in the 
United States, see Rey. St. U. S. §§ 3564, 
8365. 


FOREIGN COMMERCE.’ Commerce 
or trade between the United States and for- 
eign countries. The term is sometimes ap- 
plied to commerce between ports of two sis- 
ter states not lying on the saine coast, e. g., 
New York and San Francisco, 


FOREIGN CORPORATION. A cor- 
poration created by or under the laws of 
another state, government, or country. 


FOREIGN COUNTY. Any county hav- 
ing « judicial and municipal organization 
separate from that of the county where mat- 
ters arising in the former county are called 
in question, though both may lie within the 
Baume state or country. 


FOREIGN COURTS. The courts ofa 
foreign state or nation. In the United 
Slates, this term is frequently applied to the 


of another. 


FOREIGN CREDITOR. One who re- 
sides in a state or country foreign to that 
where the debtor has his domicile or his 


property. 


FOREIGN DIVORCE. A divorce ob- 
tained out of the state or country where the 
marriage was solemnized. 2 Kent, Comin. 
106, et seq. 


courts of one of the states when their judg- 
ments or records are introduced in the courts | 


505 


A custom in Loudon which, being found ! 


| 


| 


FOREIGN LAWS 


FOREIGN DOCUMENT. One which 
was prepared or executed in, or which comes 
from, a foreign state or country. 


FOREIGN DOMICILE. A _ domicile 
established by a citizen or subject of one 
sovereignty within the territory of another. 


FOREIGN DOMINION. In English 
law this means a country which at one time 
formed part of the dominions of a foreign | 
state or potentiate, but which by conquest or 
cession has become a part of the dominions 
of the British crown. 5 Best & 8. 290. 


FOREIGN ENLISTMENT ACT. The 
statute 59 Geo. JIL. ¢. 69, prohibiting the 
enlistinent, as a soldier or sailor, in any for- 
eign service. 4 Steph. Comm, 226. <A later 
and more stringent act is that of 33 & 34 
Vict. ce. 90. 


FOREIGN EXCHANGE. 
drawn on a foreign state or country, 


FOREIGN FACTOR. A factor who 
resides in a country foreign to that where 
his principal resides. 


FORBIGN-GOING SHIP. By the 
English merchant shipping act, 1854, (17 & 
18 Vict. c. 104,) § 2, any ship employed in 
trading, going bebween some place or places 
in the United Kingdom and some place or 
places situate beyond the following limits, 
that is to say: The coasts of the United 
Kingdom, the islands of Guernsey, Jersey, 
Sark, Alderney, and Man, and the continent 
of Europe, between the river Elbe and Brest, 
inclusive. Iome-trade ship includes every 
ship employed in trading and going between 
places within tho last-mentioned limits, 


FOREIGN JUDGMENT OR DE- 
CREE. A judgment rendered by the courts 
of a state or country politically and judicially 
distinct from that where the judgment or its 
effect is brought in question. One pro- 
nounced by a tribunal of a foreign country, 
or of « sister state. 


FOREIGN JURISDICTION. Any ju- 
risdiction foreign tothat of the forum. Also 
the exercise by a state or nation of jurisdic- 
tion beyond its own territory, the right being 
acquired by treaty or otherwise. 


Drafts 


FOREIGN JURY. A jury obtained 
from a county other than that in which issue 
was joined. 


FOREIGN LAWS, The laws of a for- 
eign country, or of a sister state. Foreign 
laws are cften the suggesting occasions of 


FOREIGN MATTER 


changes In, or additions to, our own laws, 
and in that respect are called “jus receptum.” 
Brown. 


FOREIGN MATTER. Inold practice. 
Matter triable er done in another county. | 
Cowell. 


FOREIGN MINISTER. An ambassa- 
dor, minister, or envoy from a foreign gov- 
ernment, 


FOREIGN OFFICH. The department 
of state through which the English sovereign 
communicates with foreign powers. A sec- 
retary of stateisat its head. ‘Till the middle 
of the last century, the functions of a secre- 
tary of state as to foreign and home questions 
were not disunited. 


FOREIGN PLEA. A plea objecting to 
the jurisdiction of a judge, on the ground 
that he had not cognizance of the subject- 
matter of the suit. Cowell, 


FOREIGN PORT. A port exclusively 
within the sovereignty of a foreign nation. 
A foreign port or place is a port or place 
without the United States. 19 Johns. 375. 


FORHIGN SERVICE, in feudal law, 
was that whereby a mesno lord held of an- 
other, without the compass of his own fee, 
or that which the tenant performed either to 
his own lord or to the Jord paramount out of 
the fee. (Mitch. 299.) Foreign service 
seems also to be used for knight’s service, or 
escuage uncertain, (Perk. 650.) Jacob, 


FOREIGN STATE. A foreign country 
or nition, The several United States are 
considered “foreign” to each other except as 
regards their relations as common members 
of the Union. 


FORHIGN VESSEL. A vessel owned 
by residents in, or sailing under the tlag of, 
a foreign nation, 


“Yoreign vessel,” under the embargo act of Jan- 
uary, 1808, means a vessel under the fiag of a for- 
eign power, and not a vessel in which foreigners 
domiciled in the United States haye an interest, 
1 Gall. 58. 


FOREIGN VOYAGE. A voyage to 
some port or place within the territory of a 
foreign nation. The terminus of a voyage 
determines itscharacter. If it be within the 
limits of aforeign jurisdiction, it is a foreign 
voyage, and not otherwise, 1 Story, 1.° Sea 
8 Kent, Cotnm. 177, note; 1 Gall. 55. 


FOREIGNER. In old English law, this 
term, when used with reference to a particu- 
lar city, designated any person who was not 


506 


FORESAID 


an inhabitant of that city. According to lat 
er usage, it denofes a person who is not g 
citizen or subject of the state or country of 
which mention ig made, or any one owing 
allegiance te a foreign state or sovereign. — 


FORBEIN. 
Blount. 


FOREJUDGE. In old English law and 
practice. To expel from court for some ot 
fense or misconduct, When an ofiicer or ab 
torney of a court was expelled for any offense, 
or for not appearing to an action by bill filed 
against him, he was said to be forejudged 
thecourt. Cowell. 

To deprive or put out of a thing by the 
judgment of a court. To condemn to lose a 
thing, 

To expel or banish. 


FOREJUDGER. In English practice, 
A judgment by which a man is deprived or 
put out of a thing; a judgment of expulsion 
or banishment. Sce ForEsupex. 


FOREMAN, The presiding member of 
grand or petit jury, who speaks or answer 
for the jury. 


An old form of foreign, (q. tb) 


FORENSIC. Belonging to courts of 
justice, 


FORENSIC MEDICINE, or madical 
jurisprudence, as it is also called, is “that 
science which teaches the application of every 
branch of medical knowledge to the purposes 
of the law; hence its limits are, on the one 
hand, the requirements of the law, and, oa 
the other, the whole range of medicine. 
Anatomy, physiology, medicine, surgery, 
ehemistry, puysies, and botany lend their aid 
as necessity arises; and in some cases all 
these branches of science are require: to ena« 
ble a court of law to arrive ata proper con- 
clusion on a contested question affectingdite 
or property.” Tayl. Med. Jur. 1. 


FORENSIS. Inthe civil law. Belong- 
ing to or connected with a court; forensic. 
Fovensis home, an advocate; a pleader of 
causes; one who practices in court. Calvin, 

In old Scotch law. A strange man or 
stranger; an out-dwelling man; an “unfree 
man,” who dweils not within burgh, 


FORESAID is used in Scotch law as 
aforesaid is in English, and sometimes, ina 
plural form, foresaids, 2 Tow. State Tr. 715. | 
FPorsaidis securs in old Scotch records. “The 
Loirdis assesouris forsaidis.” J] Fite, Crim. 
Crate li 10x 


FORESCHOKE 


RESCHOKE. 
w. JE. c. 1. 


FORESHORE. That part of the land ad- 
acent to the sea which is aiternately covered 
i left dry by the ordinary flow of the tides; 
»@, hy the medium line between the greatest 
least range of tide, (spring tides and 
ip tides.) Sweet. 


FOREST. In old English law. A cer- 
n territory of wooded ground and fruitful 
tures, privileged for wild beasts and fowls 
of forest, chase, and warren, to rest and abide 
in the safe protection of tle prince for his 
"princely delight and pleasure, having a pecul- 
Jar court and officers. Manw. For. Laws, c. 
1,no. 1; Termes dela Ley; 1 BI]. Comm. 289. 

A royal hunting-ground which lost its pe- 
culiar character with the extinction of its 
courts, or When the franchise passed into the 
hands of a subject. Spelman; Cowell. 

The word ig also used to signify a franchise 
orright, being the right of keeping, for the 
purpose of hunting, the wild beasts and fowls 
of forest, chase, park, and warren, in a ter- 
ritory or precinct of woody ground or pasture 
_ setapart for the purpose. 1 Steph. Comm. 
665. 

FOREST COURTS. In English law. 
Courts instituted for the government of the 
king's forest in different parts of the king- 
dom, and for the punishment of all injuries 
(lone to the king’s deer or venéson, to the vert 
or greensward,*and to the covert in which 

sich dear were lodged. They consisted of the 

courts of attachments, of regard, of swein- 

mote, and of justice-seat; but in later times 

these courts are no longer held. 3 Bi. 
Comm. 71. 


FOREST LAW. The system or body of 
old law relating to the royal forests. 


I FORESTAGE. <A duty or tribute pay- 
able to the king’s foresters. Cowell. 


Forsaken; disavowed. 


FORESTAGIUM. <A duty or tribute 
payable to the king’s foresters. Cowell. 


FORESTALL. To intercept or obstruct 
a passenger on the king’s highway. Cowell. 
To beset the way of a tenant 30 as to prevent 
his coming on the premises. 3 6]. Comm. 
170. To intercept a deer on his way to the 
| forest before he can regain it. Cowell. 


FORESTALLER.. In old English law. 
Obstruction; hindrance; the offense of stop- 
ping the highway; the hindering a tenant 
from coming to his land; intercepting a deer 
before it can regain the forest. Also one 


507 


FORFEIT 


who forestalis; one who commits the offense 
of forestalling. 3 Bl. Comm. 170; Cowell. 


FORESTALLING. Obstructing the 
highway. Intercepting a person on the high- 
Way. 


FORESTALLING THE MARKET. 
The act of the buying or contracting for any 
merchandise or provision on its way to the 
market, with the intention of selling it again 
at a higher price; or the dissuading per- 
sons from bringing their goods or pro- 
visions there; or persuading them to enhance 
the price when there. 4 Bl. Comm, 158. 
This was formerly an indictable offense in 
England, but is now aboiished by St. 7 & 8 
Vict. c. 24. 4 Steph. Comm. 291, note. 


FORESTARIUS. In Englishlaw. A 
forester. An officer who takes care of the 
woodsand forests. De forestario upponen- 
do, @ writ which lay to appoint a forester to 
prevent further commission of waste when a 
tenant in dower had committed waste. Bract. 
316; Du Cange. 

In Scotch law. A forester or keeper of 
woods, to whom, by reason of his office, per- 
tains the bark and the hewn branches, And, 
when he rides through the forest, he may take 
atree as high as his own head. Skene de 
Verb. Sign. 


FORESTER. <A sworn officer of the 
forest, appointed by the king’s letters patent 
to walk the forest, watching both the vert and 
the venison, attaching and presenting all 
trespassers against them within their own 
bailiwick or walk. These letters patent were 
generally granted during good behavior; but 
sometimes they held the office infee. Blount. 


FORETHOUGHT FELONY. In 
Scotch law. Murder committed in conse- 
quence of a previous design. LErsk. Inst. 4, 
4, 50; Bell. 


FORFANG. In old English law. ‘The 
taking of provisions from any person in fairs 
or markets before the royal purveyors were 
served with necessaries for the sovereign. 
Cowell. Also the seizing and rescuing of 
stolen or strayed cattle from the hands of a 
thief, or of those having illegal possession of 
them; also the reward fixed for such rescua, 


FORFEIT, To lose an estate, a fran- 
chise, or other property belonging to one, by 
the act of the lew, and ag a consequence uf 
some misfeasance, negligence, or omission. 
The further ideas connoted by this term are 

| that it is a deprivation, (that is, against the 


FORFEIT 


will of the losing party,) and that the property 
ts either transferred to another or resumed 
by the original grantor. 

To incur a penalty; to become liable to the 
payment of a sum of money, as the conse- 
quence of a certain act, 


FORFEITABLE. Liable tobe forfeited; 
subject to forfeiture for non-user, negicct, 
crime, ete. 


FORFEITURE. JI. A punishment an- 
nexed by law to some illegal act or negligence 
in the owner of lands, tenements, or heredita- 
ments, whereby he loses all! his interest there- 
in, and they go to Lhe party injured as a rec- 
ompense for thea wrong which he alone, or 
the publie together with himself, hath sus- 
tained. 2 Bl. Comm. 267. 

2. The loss of land by a tenant to his lord, as 
the consequence of some breach of fidelity. 
J Steph. Comm. 166. 

8. The loss of lands and goods to the state, ag 
the consequence ofcrime. 4 Bl. Comm. 381, 
337; 4Steph. Comm. 447, 452; 2 Kent, Comin. 
385; 4 Kent, Comm. 426. 

4. The loss of goods or chattels, aga punish- 
ment for some crime or misemeaner in the 
party forfeiting, and as a compensation for 
the offense and injury committed against him 
to whom they are forfeited. 2 131. Comm. 
420. 

It should be noted that “forfeiture” is not an 
identical or convertible term with “confiscation.” 
The latter is the consequence of the former. For- 
feiture is the reauit which the law attaches as an 
immediate and necessary consequence to the illegal 
acts of the individual; but confiscation implies the 
action of the state; and property, although it may 
be forfeited, cannot be said to be confiscated until 
the government has formally claimed or taken pos- 
session of it. 

5. The loss of office by abuser, non-user, or 
refusal to exercise it. 

6. The loss of a corporate franchise or ehar- 
ter in consequence of some illegal act, or of 
malfeasance or non-feasance. 

7. The loss of the right to life, as the conse- 
quence of the commission of some crime to 
which the lav has affixed a capital penalby. 

8. The incurring a liability to pay a definite 
sum of money as theconsequence of violating 
the provisions of some statute, or refusal to 
comply with some requirement of law. 

9. A thing or sum of money forfeited. 
Something imposed as a punishment for an 
offense or delinguency. The word in this 
sense is frequently associated with the word 
“penalty.” 


FORFEITURE OF A BOND. 4 fail- 
ure to perform the condition on which the 


508 


_ portation was prohibited, to be proclaimed 
| each term in the exchequer. 


FORGERY 


obligor was to be excused from the penal 
in the bond. 


FORFEITURE OF MARRIAGE. A 
penalty incurred by a ward in chivalry whe 
married without the consent or against the 
will of the guardian. See DUPLEX Vator 
Manriraau. 


FORFEITURE OF SILK, supposed to 
lie in the docks, used, in times when its in 


FORFEITURES ABOLITION ACT, 


quit-rent; a small reserved rent in money, 
Jacob. 


FORGE. To fabricate, construct, or pre 
pare one thing in imitation of another thing, 
with the intention of substituting the false 
for the genuine, or otherwise deceiving and 
defrauding by the use of the spurious artiels, 
To counterfeit or make falsely. Especially, 
to make a spurious written instrument with 
the intention of fraudulently substituting it 
for another, or of passing it off as genuine; 
or to fraudulently altera genuine instrumen 
to another's prejudice; or to sign another 
person’s name to a document, with a deceit. 
fu) and fraudulent intent. 

To forge (a metaphorical expression, borrowed 
from the occupation of the smith) means, properly 
speaking, no more than to make or form, but ip 
our lawit is always taken in anevilsense. 2 Hast, 
P. C. p. 852, e. 19, § 1. 

To forge is to make in the likeness of something 
elsa; to counterfeit is to make in imitation of 
something else, with a view to defraud by passing 
the faise copy for gcnuinecroriginal. Both words, 
“forged” and “counterfeited,” convey the idea of 
similitude. 42 Me, 202. 

In common usage, however, forgery is almost 
always predicated of some private instrument or 
writing, as a deed, note, will, or a signature; and 
counterfeiting denotes the frauduleat imitation of 


coined or papér money or some substitute there 
for. 


FORGERY. In criminal law. Ths 
falsely making or materially altering, with 
intent to defraud, any writing which, if gen- 
vine, migiit apparently be of Jegal efficacy or 
the foundation of a legal liability. 2 Bish. 
Crim. Law, § 523. 

The fraudulent making and alteration of s 
writing to the prejudice of another man’s 
right. 4 Bl. Comm. 247. See Fores. 


Forgery, at common law, denotes a false making, 
(which ineludes every alteration or addition to a 
true instrument;) amaking, male anime, of any 


FORGERY 


5 East, P. C. 852. 
The false making an instrument which purports 
ts face to ba good and valid for the purposes 
for which it was created, with a design to defraud 
any persou or persous. 1 Leach, 366. 


or forged; especially a forged writing. A 
forged signature is frequently said to be “a 
Forgery.” 

In the law of evidence. Tha fabrication 
or counterfeiting of evidence. The artful 
and fraudulent manipulation of physical ob- 
jects, or the deceitful arrangement of genu- 
ine facts or things, in such a manner as to 
ereate an erroneous impression or a false in- 
ference in the minds of those who may ob- 
serve them. See Burrill, Cire. Ev. 181, 420. 


FORGERY ACT,1870, Thestatute 33 
& 34 Vict. ¢. 58, was passed for the punish- 
ment of forgers of stock certificates, and for 
extending to Scotland certain provisions of 
the forgery act of 1801. Mozley & Whitley. 


FORHERDA. In old records. A herd- 
land, headland, or foreland. Cowell. 


FORI DISPUTATIONES. In thecivil 
law. Discussions or arguments before a 
court. 1 Kent, Comm. 530. 


FORINSECUM MAWNERIUM, shat 
part of « manor which lies without the town, 
and is not included within the liberties of it. 
Paroch. Antiq. 351. 


FORINSECUM SERVITIUM. The 
payment of extraordinary aid. Kennett, 
Gloss, 


FORINSECUS. Lat. Foreign; exte- 
tior; outside; eXtraordinary. Servitium fo- 
rinsecum, the payment of aid, scutage, and 
other extraordinary military services. Forin- 
secu manerium, the manor, or that part of 
it which lies outside the bars or town, and is 
not included within the liberties of it. Cow- 
ll; Blount; Jacob; 1 Reeve, Eng. Law, 273. 


FORINSIC. In old English law. Ex- 
terior; foreien; extraordinary In feudal 
law, the term “forinsic services” compre- 
hended the payment of extraordinary aids or 
the rendition of extraordinary military serv- 
fees, and in this sense was opposed to “in- 
trinsic services.” 1 Reeve, Eng. Law, 273. 


FORIS. Abroad; out of doors; on the 
outside of a place; without; extrinsic. 


FORISEANITUS. 
Banished. 


In old Uinglish law. 


The thing itself, so falsely made, imitated, 


509 


itten instrument for the purpose of fraud and © 


| 


FORISJUDICATOS 


FORISFACERE. Lat. To forfcit; to 
Iese an estate or other property on account 
of some criminal or illegal act. To confis- 
cafe. 

To act beyond the law, 7. ¢., to transgress 
or infringe the law; to commit an offense or 
wrong; to do any act against or beyond the 
law. See Co. Litt. 5¥¢; Du Cange; Spel- 
man. 


Forisfacere, i. 6., extra lezgem seu con- 
suetudinem facere. Co, Litt. 89. Foris- 
Jacere, i. e., to do something beyond law or 
custom. 


FORISFACTUM. Forfeited. Sona fo- 
risfacta, forfeited goods, 1 Bl. Comm. 299. 
Acrime. Du Cange; Spelman. 


FORISFACTURA. A crime or offense 
through which property is forfeited. 

A fine or punishment in money. 

Forfeiture. The loss of property or life In 
consequence of crime. 

Forisfactura piend. <A forfeiture of all 
aman’s property, Things which were for- 
feited, Du Cange; Spelman. 


FORISFACTUS. Acriminal. One who 
has forfeited his life by commission of a eap- 
ital offense. Spelman. 

Forisfactus servus. A slaye who has been 
a free man, but has forfeited his freadom by 
erime. Du Cange. 


FORISFAMILIARE. In old English 
and Scotch law. Juiterally, to put out of a 
family, (foris familiam ponere,) To portion 
olf a son, so that he could have no further 
elaim upon his father. Glany. lib. 7, ¢. 3. 

To emancipate, or free from paternal au- 
thority. 


FORISFAMILIATED. Inold English 
law. Portioned off. A son was said to be 
forisfamiliated (forisfaméliart) if his father 
assigned him part of his land, and gave him 
seisin thereof, and did this at the request or 
with the free consent of the son himself, 
who expressed himself satisfied with sueh 
portion. i Reeve, Eng. Law, 42, 110. 


FORISPAMILIATUS. In old English 
law. Put out of a family; portioned off; 
emancipated; forisfamiliated. Bract. fol. 64. 


FORISJUDICATIO. In old English 
law. Forejudger. A forejudgment. A judg- 
ment of court whereby 2 man is put out of 
possession of athing. Co. Litt. 1000. 


FORISJUDICATUS. 
from court; banished, 


Forejudged; sent 
Deprived of a thing 


FORISJURARE 


by judgment of court. Bract. fol. 2508; Co. 
Litt. 10U6; Du Cange. 


FORISJURARE. To forswear; to ab- 
jure; to abandon. Forisjurare parenttlam. 
Toremove oneself from parental authority. 
The person who did this lost his rights as 
heir. Du Cange. 

Provineiam forisjurare. 
country. Spelman. 


FORJUDGE. See FoREJUDGE, 


FORJURER. if Fr. In old English 
law. To forswear; to abjure. Forjurer 
royalme, toabjure the realm. Britt. ce. 1, 16. 


To fors wear the 


FORLER-LAND. Land in the diocese 
of Hereford, which had a peculiar custom at- 
tached to it, but which has been long since 
disused, although the nameisretained. But. 
Surv. 56. 


FORM. 1. A model orskeleton of an in- 
strument to be used ina judicial proceeding, 
containing the principal necessary matters, 
the proper technical terms or phrases, and 
whatever else is necessary to make it formally 
correct, arranged in proper and methodical 
order, and capable of being adapted to the cir- 
cumstances of the specific case, 

2. As distinguished from “substance,” 
“form” means the legal or technical manner 
or order to be observed in legal instruments 
or juridical proceedings, or in the construc- 
tion of legal documents or processes. 

The distinction between “form” and “substance” 
is often importantin reference to the validity or 
amendment of pleadings. If tho matter of the plea 
is bad or insufiicient, irrespective of the manner 
of setting it forth, the defect is one of substance, 
If the matter of the pleais good and sufficient, but 
ig inartificially or defectiyvely pleaded, the defect 
is one of form. 


FORMA. Form; the preseribed form of 
judicial proceedings. Forma et figura ju- 
dieii, the form and shape of judgment or ju- 
dicial action. 3 BI. Comm. 271. 


Forma dat esse. Form gives being. 
Called “the old physical maxim.” Lord Hen- 
ley, Ch., 2 Eden, 99, 


Forma legalis forma essentialis, 
form is essential form. 10 Coke, 100. 


Legal 


Forma non observata, infertur adnul- 
latio actus. Where form is not observed, a 
nullity of the act is inferred. 12 Coke, 7. 
Where the law prescribes a form, the non-ob- 
servance of it is fatal to the proceeding, and 
the whole becomes a nullity. Best, Ev. 
Introd. § 59. ; 


§10 FORMEDON IN THE REMAINDER 


| had a right to lands or tenements by virtue 


| Brev. 255, 


FORMA PAUPERIS. 
PAUPERIS. 


FORMALITIES. In England, robes 
worn by the magistrates of a city or corpora- 
tion, etc., on solemn occasions. Ene. Lond. 


FORMALITY. The conditions, in re 
gard to method, order, arrangement, use of 
technical expressions, performance of spe- 
cific acts, ete., which are required by the law 
in the making of contracts or conveyances, 
or in the taking of legal proceedings, to in- 
sure their validity and regularity. 


FORMATA. 
letters. 


See In Forma 


In canon law. Canonical 


Spelman, 


FORMATA BREVIA. Formed writs; 
writs of form. See Brevia FormarTa. 


FORMED ACTION. An action for 
which a set form of words is prescribed, 
which must be strictly adhered to. 10 Mod. 
140, 141. 


FORMEDON. An ancient writ in En- 
glish law which was available for one who 


of a gift in tail. It was in the nature of a 
writ of right, and was the highest action that 
a tenant in tail could have; for he could not 
have an absolute writ of right, that being 
confined to such as claimed in fee-simple, 
and for that reason this writ of formedon was 
granted to him by the statute de donis, 
Westm. 2, 13 Edw, I.c.1,) and was emphat- 
ically called “his” writ of right. The writ 
was distinguished into three species, viz: 
Formedon in the descender, in the remainder, 
and in the reverter. It was abolished in 
England by St.3 & 4 Wm. lV. c. 27, Ses 
3 Bl. Comm. 191; Co. Litt. 316; Fitzh. Nat. 


FORMEDON IN THE DESCENDER. 
A writ of formedon which lay where a gift was 
made in tail, and the tenant in tail atiened 
the lands or was disseised of them and died, 
for the heir in tail to recover them, against the 
actual tenant of the freehold. 3 Bl. Comm. 
192. 


FORMEDON IN THE REMAIN- 
DER. A writ of formedon which lay where 
aman gave lands to another for life or in 
tail, with remainder to a third person in tail 
or in fee, and he who had the particular es- 
tale died without issue inheritable, and a 
stranger intruded upon him in remainder, 
and kept him out of possession. In this case 
he in remainder, or his heir, was entitled to 
this writ. 3 Bl. Comm. 192, 


FORMEDON IN THE REVERTER 511 


FORMEDON IN THE REVERTER. 
A writ of formedon which lay where there 
wag a gift in tail, and afterwards, by the 
death of the donee or his heirs without issue 
of his body, the reversion fell in upon the 


donor, his heirs or assigns. In such case, the , 


reverstoner had this writ to recoverthe lands. 
3 Bl. Comm. 192, 


FORMELLA. Acertain weightof above 
70 lbs., mentioned in 51 Hen. III. Cowell. 


FORMER ADJUDICATION, or FOR- 
MER RECOVERY. An adjudication or 
recovery in a former action. See Res Juvi- 
OATA. 


FORMIDO PERICULI. Lat, Fearof 
danger. 1 Kent, Comm. 23, 


FORMS OF ACTION. The general 
designation of the various species or kinds 
of personal actions known to the common 
law, such as trover, trespass, debt, assump- 
sit, etc. These differ in their pleadings and 
evidence, as well as in the circumstances to 
which they are respectively applicable. 


FORMULA. In common-law practice, a 
set form of words used in judicial proceed- 
ings. In the civil law, an action. Calvin. 


FORMULA. In Roman law. When 
the legis actiones were proved to be inconven- 
ient, a mode of procedure called “per for- 
mutas,” (z. e., by means of formule,) was 
gradually introduced, and eventually the degés 
actiones were abolished by the Lex A¢butia, 
B. C. 164, excepting in a very few exceptional 
matters. The formule were four in num- 
ber, namely: (1) The Demonstratio, wherein 
the plaintiff stated, 7. ¢., showed, the facts 
out of which his claim arose; (2) the Inmten- 
tio, where he made his claim against the de- 
fendant; (3) the Adjudicatio, wherein the 
judex was dfrected to assign or adjudicate 
the property or any portion or portions there- 
of according to the rights of the parties; and 
(4) the Condemnatio, in which the judex 
was authorized and directed to condemn or 
to acquit according as the facts were or were 
not proved. These formule were obtained 
from the magistrate, (in jw7e,) and were 
thereafter proceeded with before the judex, 
(tz gudieio.) Brown. See Mackeld. Rom, 
Law, § 204, 


FORMULARIES. Collections of jsor- 
mule, or forms of forensic procecdings and in- 
struments used among the Franks, and other 
early continental nations of Europe. Among 
these the formulary of Mareulphus may be 


| 


FORSWEAR 


mentioned as of considerable interest. Butl. 


Co. Litt, note 77, lib. 3. 


FORNAGIUM. The fea taken by a lord 
of his tenant, who was bound to bake in the 
lord’s common oven, (in furno domitit,) or 
for a commission to use his awn. 


FORNICATION. Unlawful sexual in- 
tercourss between two unmarried persons, 
Further, if one of the persons be married and 
the other not, it is fornication on the part of 
the latter, though adultery for the former. 
In some jurisdictions, however, by statute, 
it is adultery on the part of both persons if 
the woman is married, whether the man is 
married or not. 


FORNIX. Lat. A brothel; fornication. 


FORNO. In Spanish law. An oven. 
Las Partidas, pt. 3, tit. 82, 1. 18. 


FORO. In Spanishlaw. The place where 
tribunals hear and determine causes,—ezer- 
cendarum litium locus. 


FOROS. In Spanish law. 
rents. Schm. Civil Law, 309. 


FORPRISE. An exception; reservation; 
excepted; reserved. Anciently, a term of 
frequent use in leases and conveyances. 
Cowell; Blount. 


In another sense, the word is taken for any 
exaction. 


FORSCHEL. A stripof land lying next 
to the highway. 


FORSES. Waterfalls. Camden, Brit. 


FORSPEAKER. An attorney or advo- 
cate in acause. Blount; Whishaw. 


FORSPECA. In old English law. 
Prolocutor; paranymphus, 


Empbhyteutic 


FORSTAL. See Foresratty. 


Forstellarius est pauperum depressor 
et totius communitatis et patris pub- 
licusinimieus. 3 Inst. 196. <A forestaller 
is an oppressor of the poor, and a public en- 
emy of the whole community and country, 


FORSWEAR. In criminal law. To 
make oath to that which the deponent knows 
to be untrue. 

This term is wider in its seope than “per- 
jury,” for the latter, as a technical term, in- 
cludes the idea of the oath being taken before 
a competent court or officer, and relating to 
a material issue, which is not implied by the 
word “forswear.” 


FORT 


512 


FORTUITOUS EVENT 


FORT. This term means “smaething | mitted, and he that furnished it was not pres- 


mors than a mere military camp, post, or ent when the fact was done. 


station, The term implies a fortification, or 
a place protected from attack by some such 
Means as a moat, wall,orparapet.” 12 Ved. 
Rep, 424, 


FORTALICE, A fortress or place of 
strength, which anciently did not pass with- 
out a special grant. 11 Hen. VII. ¢. 18. 


FORTALITIUM. In old Scotch law. 
A fortalice; a castle. Properly a house or 
tower which has a battlement or a ditch or 
moat about it. 


FORTHCOMING. In Scotchlaw. The 
action by which an arrestment (garnish- 
ment) is made effectual It is a decree or 
process by which the creditor is given the 
right to demand that the sum arrested be 
applied for payment of hisclaim. 2 Kames, 
Kq. 288, 289; Bell. 


FORTHCOMING BOND. A bond 
given to a sheriff who has levied on proper- 
ty, conditioned that the property shall be 
forthcoming, @. e., produced, when required. 
On the giving of such bond, the goods are 
allowel to remain in the possession of the 
debtor. 2 Wash. (Va.) 189; 11 Grat. 522; 
G1 Ga. 520, 

The sheriff or other officer levying a writ of flert 
Facies, or distress warrant, may take from the 
debtor a bond, with sufficient surety, payable to 
the creditor, reciting the service of such writ or 
warrant, and the amount due thereon, (including 
his fee for taking the bond, commissions, and other 
lawful charges, if any,) with condition that the 
property shall be forthcoming at theday and place 
of sale; whereupon such property may be per- 
mitted to remain in the possession and at the risk 
of the debtor. Code Va. 1387, § 3617. 


FORTHWITH. As soon as, by reason- 
able exertion, confined to the object, a thing 
may be done. Thus, when ,a defendant 
is ordered to plead forthwith, he must 
plead within twenty-four hours. When 
a statute enacts that an act is to be done 
“forthwith,” i¢ means that the act is to be 
done within a reasonable time. J Chit. 
Archb. Pr. (12th Ed.) 164. 


FORTIA. Foree. In old English law. 
Force used by an accessary, to enable the 
principal to commit a crime, as by binding 
or holding a person while another killed him, 
or by aiding or counseling in any way, or 
commanding the act tobedone. Bract, fols. 
138, 1386. According to Lord Coke, fortia 
was a word of art, and properly signified the 
furnishing of a weapon of force to do the 
fact, and by force whereci the fact was com- 


2 Inst. 182, 
FORTIA FRISCA. Fresh fores, (g. 0.) 


FORTILITY, In old English law. A 
fortified place; a castle; a bulwark, Cowell; 


| 11 Hen, VIL c, 18. 


FORTIOR. Lat. Stronger, <A term ap- 
plied, in the law of evidence, to that species 
of presumption, arising from facts shown in 
evidence, which is strong enough to shift the 
burden of proof to the opposite party. Bur 
rill, Cire. Ev. 64, 66. 


fortior est custodia legis quam hom- 
inis. 2 Rolle, 325. The custody of the law 
is stronger than that of man. 


Fortior et potentior est dispositio 
legis quam hominis, The disposition of 


| the law is of greater force and effect than 
that of man. 


Co. Litt. 284a; Shep. Touch. 
302; 15 East, 178. The law in some euses 
overrides the will of the individual, and ren- 
ders ineffective or futile his expressed inten- 
tion or contract. Broom, Max. 697, 


FORTIORI. Ses A Forrionrti. 


FORTIS: Strong. Fortis et sana, strong 
and sound; staunch and strong; as a vessel, 
Tewnsh, Pl, 227, 


FORTLETT. A place or port of some 
strength; a little fort. Old Nat. Brev. 45. 


FORTUIT. In French law. Accidental; 
fortuitous. Cas fortuit, a fortuitous syent, 
Fortuitment, accidentally; by chance. 


FORTUITOUS. Accidental; undesigned; 
adventitious. Resulting from unavoidable 
physical causes. 


PORTUITOUS COLLISION. In mari- 
time law. The accidental ranning foul of 
vessels. 14 Pet. 112. 


FORTUITOUS EVENT. In the civil 
law. That which happens by a cause which 
cannot be resisted. An unforseen occurrence, 
not caused by either of the parties, nor such 
as they could prevent. In French it is called 
“cas fortuit.” Civil Code La. art. 3556, no. 
15. 


There is a difference between a fortuitous event, 
or inevitable accident, and irresistible force, By 
the former, commoniy called the “act of God,” ts 
meant any accident produced by physical causes 
which are irresistible; such as a loss by lightuing 
or storms, by the perils of theseas, by inundationa 
and earthquakes, or by sudden death or illnesa, 
By the latter is meant such an interposition of 
human ageacy as is, from its nature and power, 
absolutely uncontrollable. Of this nature are losses 


FORTUNA 


_ , 
‘oeeasioned by the inroads of a hostile army, or by 
‘public enemies. Story, Bailm. § 25. 


FORTUNA. Lat. 
ure-trove. Jacob. 


Fortune; also treas- 


Fortunam faciunt judicem. They make 
fortune the judge. Co. Litt. 167. Spoken 
of the process of making partition among 
coparceners by drawing lots for the several 
purparts. 


FORTUNE-TELLERS. Persons _pre- 
tending or professing to tell fortunes, and 
punishable as rogues and vagabonds or dis- 
orderly persons. 


FORTUNIUM. InoldEnglishlaw. A 
tournament or fighting with spears, and an 
appeal to fortune Lherein. 


FORTY-DAYS COURT. The court of 
attachwent in forests, or wood-mote court. 


FORUM. Lat. A court of justice, or 
judicial tribunal; a place of jurisdiction; a 
place where a remedy is sought; a place of 
litigation. 8 Story, 347. 

In Roman law. The market place, or 
public paved court, in the city of Rome, where 
such public business was transacted as the 
assemblies of the people and the judicial trial 
of causes, and where also clections, markets, 
and the public exchange were held. 


FORUM ACTUS. The forum of the act. 
The forum of the place where the act was 
done which is now called in question. 


FORUM CONSCIENTIA, 
or tribunal of conscience, 


FORUM CONTENTIOSUM. A conten- 
tious forum or court; a place of litigation; 
the ordinary court of justice, as distinguished 
from the tribunal of conscience. 3 Bl. Comm. 
211. 


FORUM CONTRACTUS. The forum 
of the contract; the court of the place where 
acontractis made; the place where a contract 
is made, considered as a place of jurisdiction. 
2 Kent, Comm. 463. 


The forum 


FORUM DOMESTICUM. A domestic 
forum or tribunal. The visitatorial power is 
called a “forum domesticum,” calculated to 
determine, sine strepitu, all disputes that 
arise wilhin themselves. 1 W. Bl. 82. 


FORUM DOMICILII. The forum or 
court of the domicile; the domicile of a de 
fendant, considered as a placeof jurisdiction. 
2 Kent, Comm. 463. 

AM.DICT,.LAW—d3 


513 


a oS Se ——————e et, 
Ce a ae 


FOSS AGIUM 


FPORUM ECCLESIASTICUM. Anec- 
elesiastical court. Thespirifual jurisdiction, 
as distinguished from the secular. 


FORUM LIGEANTIA REI. The fo- 
rum of defenvdant’s allegiance. The courter 
jurisdiction of the country to which he owes 
allegiance. 


FORUM ORIGINIS. The court uf one’s 
nativity. The place of a person's birth, con- 
sidered as a place of jurisdiction. 


FORUM REGIUM. The king’s court. 
St. Westm. 2, ec. 43, 


FORUM REI. This term may mean 
either (1) the forum of the defendant, that is, 
of his residenee or domicile; or (2) the forum 
of the res or thing in controversy, that is, of 
the place where the property is situated. The 
ambiguity springs from the fact that reé may 
be the genitive of either res or res. 


FORUM REI GEST. The forum or 
court of a res yesta, (thing done;) the place 
where an act is done, considered as a place of 
jurisdiction and remedy. 2 Kent, Comm. 
463. 


FORUM REI SITA. Thecourt where 
the thing in controversy is situated. The 
place where the subject-matter in controversy 
is situated, considered as a place of jurisdic- 
tion, 2 Kent, Comm. 463. 


FORUM SHCULARE. A secular, ag 
distinguished from an ecclesiastical or spirit- 
ual, court. 


FORURTH. In old records, 
of ground. Cowell. 


FORWARDING MERCHANT, or 
FORWARDER. One wlio receives and for- 
wards goods, taking upon himself the ex- 
penses of transportation, for which he re- 
ceives a compensation from the owners, hav- 
ing no concern in the vessels or wagons by 
which they are transported, and no interest 
in the freight, and not being deemed a com- 
mon Garrier, but a mere Warehouseman and 
agent. Story, Bailm. §§ 502, 509. 


FOSSA. In the civil law. <A ditch; a 
receptacle of water, madeby hand. Dig. 43, 
14, 1, 5. 

In old Englishlaw. Aditch. A pit full 
of water, in which women committing felony 
were drowned. A grave or sepulcher. 
Spelman. 


A long slip 


Hi 


FOSSAGIUM. In old English law. M 


The duty levied on the inhabitants for re 


FOSSATORUM OPERATIO 


pairing the moat or ditch round a fortified 
town. 


FOSSATORUM OPERATIO. In old 
English law. Fosse-work; or the service of 
laboring, done by inhabitants and adjoining 
tenants, for the repair and maintenance of 
the ditches round a city or town, for which 
some pail a contribution, called ‘“fossa- 
gium.” Cowell. 


FOSSATUM. A dyke, ditch, or trench; 
a place inclosed by a ditch; a moat; a canal. 


FOSSE-WAY, or FOSSH. One of the 
four ancient Roman ways through England. 
Spelman. 


FOSSELLUM. Asmall ditch. Cowell. 


FOSTERING. <An ancient custom in 
Ireland, in which persons put away their 
children to fosterers. Fostering was held to 
be a stronger alliance than blvod, and the 
foster children participated in the fortunes of 
their foster fathers. Mozley & Whitley. 


FOSTERLAND. Land given, assigned, 
or allotted to the finding of ?ood or victuals 
for any person or persons; as in monasteries 
for the monks, etc. Cowell; Bluunt. 


FOSTERLEAN. The remuneration 
fixed for the rearing of a fosler child; also 
the jointure of a wife. Jacob. 


FOUJDAR. In Hindulaw. Under the 
Mogul government a magistrate of the police 
over a large district, who took cognizance of 
all criminal matters within his jurisdiction, 
and sometimes was employed as receiver gen- 
eral of the reyenucs. Wharton. 


FOUJDARRY COURT. In Hindu law. 
A tribunal for administering criminal law. 


FOUNDATION. The founding or build- 
ing of a college or hospital. The incorpora- 
tion or endowment of a college or huspilial is 
the foundation; and he who endows it with 
land or other property is the founder. 


FOUNDER. The person whu endows an 
eleemosynary corporation or institution, or 
supplies the funds for its establishment. 


FOUNDEROSA. Founderous; out of 
repair, as aroad. Cro. Car. 366. 


FOUNDLING. A deserted or exposed 
infant; a child found without a parent or 
guardian, its relatives being unknown, It 
has a settlement in the district where found. 


FOUNDLING HOSPITALS. Charita- 
ble institutions which exist in most countries 


514 


FOX'S LIBEL ACT 


for taking care of infants forsaken by their 
parents, such being generally the offspring of 
illegal connections. The foundling hospital 
act in England is the 13 Geo, LI. e. 29. 


FOUR. In old Frenchlaw. An oven or 
bake-house. Four banal, an oven, owned 
by the seignior of the estate, to which the 
tenants were obliged to bring their bread for 
baking. Also the proprietary right to main- 
tain such an oven. 


FOUR CORNERS. The face of a writ- 
teninstrument. That whichis contained on 
the face of a deed (without any aid from the 
knowledge of the cireumstances under which 
it is made) is said to be within its four cor- 
ners, because every deed is still supposed to 
be written on one entire skin, and so to have 
but four corners. 

To look at the four corners of an instru- 
ment is to examine the whole of it, so as to 
construe it as a whole, without reference to 
any ons part more than another, 2 Smith, 
Lead. Cas. 298. 


FOUR SEAS. The seas surrounding 
England. These were divided into the West- 
ern, including the Scotch and Irish; the 
Northern, or North sea; the Eastern, being 
the German ocean; the Southern, being the 
British channel. 


FOURCHER,. Fr. To fork. This was a 
method of delaying an action anciently re- 
sorted to by defendants when two of them 
were joined in the suit. Instead of appear- 
ing together, each would appear in turn and 
east an essojn for the other, thus postponing 
the trial, 


FOURCHING. Theact of delaying le- 
gal proceedings. Termes de la Ley. 


FOURIERISM. A form of socialism. 
See 1 Mill, Pol. Ke. 260. 


FOWLS OF WARREN. Such fowls 
as are preserved under the game laws in war- 
rens, According to Manwood, these are 
partridges and pheasants. According to 
Coke, they are partridges, rails, quails, wood- 
cocks, pheasants, mallards, and herons. Co. 
Litt. 233. 

FOX’S LIBEL ACT. In English law. 
This was the statute 52 Geo. III. c. 60, which 
secured to juries, upon the trial of indiet- 
ments for libel, the right of pronouncing a 
general verdict of guilly or not guilty upon 
the whole matter in issue, and no longer 
bound them to find a verdict of guilty on 
proof of the publication of the paper charged 


FOY 515 


to be a libel, and of the sense ascribed to lt 
{n the indictment. Wharton. 


FOY. L.¥r. Faith; allegiance; fidelity. 


FRACTIO. A breaking; division; frac- 
tion; a portion of a thing less than the whole. 


FRACTION. A breaking, or breaking 
up; a fragment or broken part; a portion of 
a thing, less than the whole. 


FRACTION OF A DAY. A portion of 
a day. The dividing aday. Generally, the 
law does not allow the fraction of a day. 2 
Bl. Comm. 141, 


Fractionem diei non recipit lex. Lofft, 
572. The law does not take notice of a por- 
tion of a day. 


FRACTITIUM. Arable land. 
Angi. 


FRACTURA NAVIUM. The breaking 
or wreck of ships; the same as naufragium, 
(9. %) 

FRAIS. Fr. Expense; charges; costs. 
Frats d'un proc?s, costs of a suit. 


FRAIS DE JUSTICE. In French and 
Canadian law. Costs incurred incidentally 
to the action. 


FRAIS JUSQU’A BORD. Fr. In 
French commercial law. Expenses to the 
bourd; expenses incurred on a shipment of 
goods, in packing, cartage, commissions, 
étc., up tu the point where they are actually 
put on board the vessel. 16 Fed. Rep. 336. 


FRANC. A French coin of the value of 
4 little over eighteen cents. 


FRANC ALEU. In French feudal law. 
An allod; a free inheritance; or an estate 
held free of any services except such as were 
due to the sovereign. 


FRANCHILANUS. A freeman. 
Hen. IV. A free tenant. Spelman. 


Mon. 


Chart. 


FRANCHISE. A special privilege con- 
ferred by government upon an individual, 
and which does not belong to the citizens of 
the country generally, of common right. It 
is essential to the character of a franchise 
that it should be a grant from the sovereign 
authority, and in this country no franchise 
can be held which is not derived from a 
law of the state. See Ang. & A. Corp. 
§ 104: 3 Kent, Comm. 458; 2 Bl. Comm. 37. 

In England, a franchise is defined to be 
a royal privilege in the hands of a subject. 
In this country, it is a privilege of a pub- 


FRANK&-ALMOIGNE 


lic nature, which cannot be exercised with- 
out a legislative grant. 45 Mo. 17. 

A franchise is a privilece or immunity of a pub 
lie nature, which cannot be legally exercised with- 
out legislative grant. To be a corporation is a 
franchise. The various powers conferred on cor- 
porations are franchises. The execution of a pol- 
icy of insurance by an Insurance company, and 
the issuing a bank-note by an incorporated bank, 
are franchises. 15 Johns. 387. 

The word “franchise” has various significations, 
both ina legal and popular sense. A corporation 
is itself a franchise belonging to the members of 
the corporation, and the corporation, itself a fran- 
chise, may hold other franchises. So, also, the 
different powers of acorporation, such as the right 
to hold and dispose of property, are its franchises. 
In a popular sense, the political rights of subjects 
and citizens are franchises, such as the right of 
suffrage, etc. 32 N. H. 484. 

The term “franchise” has several significationa, 
and there is some confusion initsuse. When used 
with reference to corporations, the better opinion, 
deduced from the authorities, seems to be that it 
consists of the entire privileges embraced in and 
constituting the grant, It does not embrace the 
property acquired by the exercise of the franchise. 
86 Coun. 255. 

The term is also used, in a popular sense, 
to denote a political right or privilege belong- 
ing toa free citizen; as the “elective fran- 
chise.” 


FRANCIA. France. Bract. fol. 4276. 


FRANCIGENA. Aman born in France. 
A designation formerly given to aliens in 
England. 

FRANCUS. Free; a freeman; a Frank. 
Spelman. 

FRANCUS BANCUS. Free bench, 
(q- 2.) 


FRAWCUS HOMO. In old European 
law. A freeman. Domesday. 


FRANCUS PLEGIUS. In old English 
law. <A frank pledge, or free pledge. See 
FRANK-PLEDGE. 


FRAWCUS TENENS. Afreeholder. 
See FrRaNK-TENEMENT. 


FRANK, %. Tosend matter through the 


| public mails free of postage, by a personal or 


official privilege. 


FRANK, adj. Inold Englishlaw. Free. 
Occurring in several compounds. 


FRANK-ALMOIGNE. In Englishlaw 
Free alms. A spiritnal tenure whereby re- 
ligious corporations, aggregate or sole, held 
Janis of the donor to them and their succea- 
sors forever, They were discharged of all) 
other except religious services, and the ¢7i- 
noda necessitas. It differs from tenure by 


FRANK BANK 


divine service, in that the latter required the | procreation. 


performance of certain divine services, 
whereas the former, as its name imports, is 
frea. 
subsists in some fewinstances. 2 Broom & 
H. Comm. 2038. # 


FRANK BANK. In old English law. 
Free bench, Litt. § 166; Co. Litt. 1108. 
See Frer-Bencu. 


FRANK-CHASE. A liberty of free 
chase enjoyed by any one, whereby all other 
persons having ground within that compass 
are forbidden to cut down wood, etc., even 
in their own demesnes, to the prejudice of 
the owner of the liberty. Cowell. See 
CHASE. 


FRAWNK-FEE. Freehold lands exempt- 
ed from all services, but not from homage; 
lands held otherwise than in ancient de. 
mesne. 

That which a man holds to himself and 
his lieirs, and not by such service as is re- 
quired in ancient demesne, according to the 
custom of the manor. Cowell. 


FRANK FERM, In English law. A 
species of estate held in socage, said by Lrit- 
ton to be “lands and tenements whereof the 
nature of the fee is changed by feoffment out 
of chivalry for certain yearly services, and 
in respect whereof neither homage, ward, 
marriage, norreliefcan be demanded.” Britt, 
ce. 66; 2 BI. Comm. 80. 


FRANK-FOLD. In old English law. 
Free-fold; a privilege for the lord to have all 
the sheep of his tenants and the inhabitants 
within his seigniory, in his fold, in his de- 
mesnes, to manure his land. Keilw. 198. 


FRANK-LAW,. An obsolete expression 
signifying the rights and privileges of a cit- 
izen, or the liberties and civic rights of a 
freeman. 


FRAWK-MARRIAGE. A species of en- 
tailed estates, in Englishlaw, now grown out 


This tenure is expressly excepted in | 
the 12 Car. IL. ¢. 24, § 7, and therefore still | 


516 


FRATERNIA 


The donees are liable to no 
service except fealty, and a reserved rent 


| would be void, until the fourth degree of con- 


sanguinity be passed between the issues of 
the donor and donee, when they were capable 
by the law of the church of intermarrying. 
Litt. $ 19; 2 BI. Comm. 115. 


FRANK-PLEDGE. In old English law, 
A pledge or surety for freemen; that is, the 
pledge, or corporate responsibility, of all the 
inhabitants of a tithing for the general good 
behavior of each free-born citizen above the 
age of fourteen, and for his being fortheom- 
ing to answer any infraction of the law. 
Termes de la Ley; Cowell. 


FRANE-TENANT. A freeholder. 
Litt. § 91. 


FRANK-TENEMENT. In English law. 
A free tenement, freeliolding, or freehold. 
2 Bl. Comm. 61, 62, 104; 1 Steph. Comm. 
217; Braet. fol. 207, Used to denote both 
the tenure and the estate. 


FRANKING PRIVILEGE. The priv- 
ilege of sending certain matter through the 
public mails without payment of postage, in 
pursuance of a personal or official privilege, 


PRANKLEYN, (spelled, also, “France. 
ling” and “Franklin.”) A freeman; a free. 
holder; a gentleman. Blount; Cowell. 


FRASSETUM. In old Englishiaw. A 
wood or wood-ground where ash-trees grow. 
Co. Litt. 46. 


FRATER. Inthe civillaw. <A brother, 
Frater consanguineus, a brother having the 
same father, but born of a different mother. 
Frater wterinus, a brother born of the same 
mother, but by a different father. rater 
nutricius, a bastard brother. 


Frater fratri uterino non sueccedet in 
hereditate puterna. A brother shall not 
succeed a uterine brother in the paternal in- 
heritanée, 2 Bl. Comm. 223; Fortes. de 
Laud. ec. 5. A maxim of the common law of 
Eneland, now superseded by the statute 3 & 


14 Wm. IV. e 106, $ 9. See Broom, Max. 


of use, but still capable of subsisting. When | 530. 
tenements are given by one to another, | 


together with a wife, who is a daughter or 
cousin of the donor, to hold in frank-mar- 
riage, the donees shall have the tenements to 
them and the heirs of their two bodies be- 
gotten, 7. @, in special tail. For the word 
“frank-marriage,” ea vi termini, both cre- 
ates and limits an inheritance, not only sup- 
plying words of descent, but also terms of 


FRATERIA. In old records. <A frater- 
nity, brotherhood, or society of religious per 
sons, who were mutually bound to pray for 
the good health and life, etc., of their living 
brethren, and the souls of those that were 
dead. Cowell. 


FRATERNIA. A fraternity or brother- 
hood. 


FRATERNITY 


FRATERNITY. “Some people of a 
place united together, in respect of a mystery 
and business, intoa company.” 1 Salk. 193, 


FRATRES CONJURATI. Sworn 
brothers or companions for the defense of 


Hoved. 445. 


FRATRES PYES. In old English law. 
Certain friars who wore white and black 
giurments. Walsingham, 124. 


FRATRIAGE. 
heritance. 


FRATRICIDE. One who has Killed a 
brother or sister; also the killing ofa brother 
or sister. 


FRAUD. Fraud consists of some deceit- 
ful practice ur willful device, resorted to with 
intent to deprive another of his right, or in 
| some manner todo him an injury. As dis- 
t tinguished from nogligence, it is always posi- 
tive, intentional. 3 Denio, 232. 

Fraud, as applied to contracts, is the cause 
of an error bearing on a material part of the 
[ contract, created or continued by artifice, 

with design to obtain some unjust advantage 
to the one party, or to case an inconven- 
ience or loss to the other. Civil Code La. 
art. 1347. 

Fraud, in the sense of a court of equity, 
properly includes all acts, omissions, and con- 
ceulments which involve a breach of legal or 
equitable duty, trust, or confidence justly re- 
posed, and are injurious to another, or by 
which an undue and unconscientious ad- 

| vantage ig taken of another. 1 Story, Eq. 
Jur, § 187. 

The unlawful appropriation of another’s 
property, with knowledge, by design and 
without criminal intent. Bae. Abr. 

Fraud may be actual or constructive. 
Actual fraud consists in any kind of artitice 
by which another is deceived. Constructive 
fraud consists in any act of omission or com- 
mission contrary to legal or equitable duty, 
trust, or confidence justly reposed, which is 
contrary to good conscience and operates to 
the injury of another. The former implies 
moral guilt; thelatter may be consistent with 
innocenee. Code Ga. 1882, § 3173. Actual 
fraud is otherwise called “traud in fact.” 
Constructive fraud is also called “fraud in 
law.” 


Actual or positive fraud incindes cases of the 
intentional and successful employment of any cun- 
aing, deception, or artifice, used to circumvent, 
eheat, or deceive another, 1 Story, Eq. Jur. § 186. 

Actual fraud or fraud in fact consists in the in- 


A younger brother’s in- 


517 


their sovereign, or for other purposes. 


——EEE——e Ee ee ee 
EES SS 


FRAUDS, SLATUTE OF 


tention to prevent creditors from recovering their 
just debts by an act which withdraws the proper. 
ty of a debtor from their reach. Fraud in law 
consists in acts which, though noi fraudulently in- 
tended, yet, as their tendency is to defraud cred- 
itors if they vest the property of the debtor in hia 
grantee, are void for legal fraud, and fraudulent 
in themselves, the policy of tha law making the 
acts illegal. Actual fraud is always a question for 
the jury; legal fraud, where the facts are tndis- 
puted or are ascertained, is for the court. 64 Pa 
St. 356. 

The modes of fraud are infinite, and it has been 
said that courts of equity have never laid down 
what shall constitute fraud, or any general rule, 
beyond which they will not go, on the ground of 
fraud. Fraud is, however, usually divided into 
two large classes,—actual fraud and constructiva 
fraud. An actual fraud may be defined to be some- 
thing said, done, or omitted by a person with the 
design of perpetrating what he must have known 
to be a positive fraud. Constructive frauds are 
acts, statements, or omissions which operate as 
virtual frauds on individuals, or which, if gener- 
ally permitted, would be projudicial to the public 
welfare, and yet may have been unconnected with 
any selfish or evil design; as, for instance, bonds 
and agreements entered into as a reward for using 
influence over another, to induca him to make a 
will for the benefitof the obligor. For such con- 
tracts encourage a spirit of artifice and scheming, 
and tend to deceive and injure others. Smith, 
Man. Kq, . 

Synonyms. The term “fraud” is some 
times used as synonymous wilh “covin,” 
“collusion,” or “deceit.” But distinctions 
are properly taken in the meanings of these 
words, for which reference may be had to the 
titles CovIN; COLLUSION; DECEIT. 


FRAUD IN FACT. Actual, positive, 
intentional fraud. Fraud disclosed by mat- 
ters of fact, as distinguisiied from construct 
ive fraud or fraud in law. 


FRAUD IN LAW. Fraud In contem- 
plation of law; fraud implied or inferred by 
law; fraud made out by construction of law, 
as distinguished from fraud found by a jury 
from matier of fact; constructive fraud, (q. 
t.) See 2 Kent, Comm. 612-582. 


FRAUDARE. In thecivillaw. ‘To de- 
ceive, cheat, or impose upon; to defraud. 


FRAUDS, STATUTE OF. This is the 
common designation of a very celebrated 
English statute, (29 Car, II. ¢. 3,) passed in 
1677, and which has been adopted, in a more 
or lesa modified form, in nearly all of the 
United States. Its chief characteristie is the 
provision that nu suit or action shall be main- 
tained on certain classes of contracts or en- 
gagements unless there slali be a note or 
memorandum thereof in writing signed by 
the party to be charged or by his authorized 
agent Its object was to close the dvor to 


FRAUDULENT CONVEYANCE 


the numerous frauds which were believed to 
be perpetrated, and the perjuries which were 
believed to be commitied, when such obliga- 
tions could be enforced upon no other evi- 
dence than the mere recollection of witnesses. 
It is more fully named as the “statute of 
frauds and perjuries.” 


FRAUDULENT CONVEVANCE. A 
conveyance or transter of property, the object 
of which is to defraud a creditor, or hinder 
or delay him, or to put such property beyond 
his reach. 

Every transfer of property or charge there- 
on made, every obligation incurred, and every 
judicial proceeding taken with intent to de- 
lay or defraud any creditor or other person 
of his demands, is void against all creditors 
of the debtor, and their successors in interest, 
and against any person pon whom the estate 
of the debtor devolves in trust for the benefit 
of others than the debtor. Civil Code Cal. 
§ 3439. 

A transfer made by a person indebted or In em- 
barraussed circumstances, which was intended or 
will necessarily operate to defeat the right of his 


creditors to have the property applied to the pay- 
ment of theirdemands. Abbott. 


FRAUDULENT CONVEYANCES, 
STATUTES OF, OR AGAINST. The 
name given to two celebrated English stat- 
utes,—the statute 13 Eliz. ¢. 5, made perpet- 
ual by 29 Eliz. ec. 5; and the statute 27 Eliz. 
c. 4, made perpetual by 29 Eliz. c. 18. 


FRAUDULENT PREFERENCES. In 
Inglish law. Every conveyance or transfer 
of property or charge thereon made, every 
judgment made, every obligation incurred, 
and every judicial proceeding taken or suf- 
fered by any person unable to pay his debts 
as they become due from his own moneys, in 
favor of any creditor, with a view of giving 
such creditor a preference uVer other credit- 
ors, shall be deemed frandulent and void if 
the debtor become bankrupt within three 
months, 32 & 33 Vict. c. 71, § 92. 


FRAUNC, FRAUNCHH, FRAUNKE., 
See FRang, 


FRAUNCHISE. L. Fr. A franchise. 


FRAUS. Tat. Fraud. More commonly 
enlled, in the civil law, “dolws” and “dolus 
malus,”(q.0.) A distinction, however, was 
sometimes made between “ fraus” and 
“dulus ;” the former being held to be of tha 
mnvsat extensive import. Calvin. 


FRAUS DANS LOCUM CONTRAC- 
TUL. Lat. 


518 


| as to the freight of his vessels. 


A misrepresentation or conceal- | 


FREE 


ment of some fact thal is material to the con- 
tract, and had the truth regarding which been 
known the contract would not have been 
made as made, is called a “fraud dans locum 
contraciut;” zt, ¢., a fraud occasioning the 
contract, or giving place or occasion for the 
contract. : 


Fraus est celare fraudem,. Itisa fraud 
to conceal a fraud. 1 Vern. 240; 1 Story, 
Eq. Jur. $§ 389, 390. 


Fraus est odiosa et non preesumenda. 
Fraud is odious, and not to be presumed. 
Cro. Car. 550. 


Fraus et dolus nemini patrocinari de- 
bent. Fraud and deceib should defend or 
excuse noman. 3 Coke, 78; Fleta, lib. 1, ¢. 
18, § 15; Id. lib. 6, c. 6, § 5. 


Fraus ef jus nungquam cohabitant. 
Wing. 680. Fraud and justice never dwell 
together. 


¥Fraus latet in generalibus. Fraud lies 


hid in general expressions. 


FRAUS LHGIS. Lat. In the civil law. 
Fraud of law; fraud upon law. See In 
TFRAUDEM LEGIS. 


Fraus meretur fraudem. Plowd. 100. 


Fraud merits fraud. 


FRAXINETUM. In old English law. 
A wood of ashes; a place where ashes grow. 
Co. Litt. 40; Shep. Touch. 95. 


FRAY. See Arrray. 


FRECTUM. In old English law, 
Freight. Quoad frectum navium suarum, 


Blount. 


FREDNITE. In old English law. A 
liberty to hold conrts and take up the fines 
for beating and wounding. To be tree from 


fines. Cowell. 

FREDSTOLE. Sanctuaries; seats of 
peace. 

FREDUM. A fine paid for obtaining 


pardon when the peace had been broken. 
Spelman; Blount. A sum paid the magis- 
trate for protection against the right of re- 
venge. 


FREE. 1. Unconstrained; having power 
to follow the dictates of his own will. Not 
subject to the dominion of another, Not 
compelled to involuntary servitude. Used in 
this sense as opposed to “slave.” 

2. Not bound to service for a fixed term of 


FREE 


years; in distinction to being bound as an 
apprentice. 

3. Enjoying full civic rights. 

4, Available to all citizens alike without 
charge; as a free school. 

5. Available for public use without charge 
or toll; as a free bridge. : 

6. Not despotic; assuring liberty; defend- 
ing individual rights against encroachment 
by any person or class; instituted by a free 
people; said of goyeruments, institutions, 
ate. Webster. 

7. Certain, and also consistent with an 
honorable degree in life; as free services, in 
the feudal law. 

8. Confined to the person possessing, in- 
stead of being shared with others; as a free 
fishery. 

9. Not engaged in a war as belligerent or 
ally; neutral; as in the maxim, “Free ships 
make free goods.” 


FREE ALMS. 
tenure, 


The name of a species of 
See FrRank-ALMOIGNE. 


FREE-BENCH. A widow’s dower out 
of copyholds to which she is entitled by the 
custom of some manors. It isregarded as an 
excrescence growing out of the husband's in- 
terest, and is indeed a continuance of his es- 
tate. Wharton. 


FREHE-BORD. In old records, An al- 
lowanee of land over and above a certain 
limit or boundary, as so inuch beyond or with- 
out afence. Cowell; Blount. 

The right of claiming that quantity. 
Termes de Ja Ley. 


FREE BOROUGH MEN. Such great 
men as did not engage, like the frank-pledge 
men, for their decennicr. Jacob. 


FREE CHAPEL. In English ecclesias- 
tical law. A place of worship, so called be- 
eause not liable to the visitation of the ordi- 
nary. It is always of royal foundation, or 
founded at least by private persons to whem 
the crown has granted the privilege. 1 
Burn, Ece. Law, 298. 


FREE COURSE. Inadmiraltylaw. A 
vessel having the wind from a favorable 
quarter is said to sail on a “froe course.” 


FRESE ENTRY, EGRESS, AND RE- 
GRESS, An expression used todenote that 
a person has the right to go on land again 
and again as often as may be reasonably nec- 
essary. Thus, in the case of a tenant enti- 
fled to emblements. 


519 


| 


FREEDMAN 


FREE FISHERY. A franchise in the 
hands of a subject. existing by grant or pre- 
scription, distinct from an ownership in the 
soil. It is an exclusive right, and applies to 
a public navigable river, without any right 
in the soil. 3 Kent, Comm. 410. 


FREE ON BOARD. A sale of goods 
“free on board” imports that they are to be 
delivered on board the cars, vessel, ete., with- 
out expense to the buyer for packing, cart- 
age, or olher such charges. 

In a contract for sale and delivery of goods “frea 
on board” vessel, the seller is under no obligation 
to act until the buyer names the ship to which the 
delivery is to be made, 117 Pa. St. 508, 12 AtL 
Rep. 32. 

FREE SERVICES. In feudal and old 
English law. Such feudal services as were 
not unbecoming the character of a soldier or 
a freeman to perform; as to serve under his 
lord in the wars, to pay a sum of money, and 
the like. 2 Bl, Comm, 60, 61. 


FREE SHIPS. In international law. 
Ships of a neutral nation, ‘Fhe phrase “free 
ships shall make free goods” is often inserted 
in treaties, meaning that goods, even though 
belonging to an enemy, shall not be seized or 
confiscated, if foundin neutralships. Wheat. 
Tnt. Law, 507, et seq. 


FREE SOCAGE. In English law. A 
tenure of lands by certain free and honorable 
services, (such as fealty and rent,) and which 
are liquidated and reduced toa certainty. It 
was called “free socage” because the serv- 
ices were not only free, but honorable; where- 
as in vidletn socage the services, though cer- 
tain, were ofa baser nature. 2 Bl. Comm. 
78, 79. 


FREE SOCMEN. In old English law. 
Tenants in free socage. Glanv. lib. 3, c. 7; 
2 Bl. Comm. 79. 


FREE TENURE. 
ices; freehold tenure. 


Tenure by free serv- 


FREE WARREN, A franchise for the 
preserving and custody of beasts and fowls 
of warren. 2 Bl. Comm. 39, 417; Co. Litt. 
233. This franchise gave the grantee sole 
Tight of killing, so far as his warren extend- 
ed, on condition of excluding other persons. 
2 Bl. Comm. 39. 


FREEDMAN. InkKoman law. One 
who was set free from a state of bondage; 
an emancipated slave. The word is used in 
tlhe same sense in the United States, respect- 
ing negroes who were formerly slaves. 


FREEDOM 


FREEDOM. The state of being free; 
liberty; seif-determination: absence of re- 
straint; the opposite of slavery. 

The power of acting, in the character of a 
moral personality, according to the dictates 
of the will, without other check, hindrance, 
or prohibition than such as may be imposed 
by just and necessary laws and the duties of 
social lize. 

The prevalence, in the government and 
constitution of a country, of such a system of 
laws and institutions as secure civil liberty 
to the individual citizen. 


FREEHOLD. -Anestate in land or other 
real property, of uncertain duration; that is, 
either of inheritance or which may possibly 
last for the life of the tenant at the least, (as 
distinguished from a leasehold;) and heid by 
a free tenure, (ag distinguished from copy- 
hold or villeinage.) 


Such an interest in lands of frank-tenement as 
may endure not only during the owner’s life, but 
which is cast after his death upon the persons who 
sucecssively represent him, according to certain 
rules elsewhere explained. Such persons 
called “heirs,” and he whom they thus represent, 
the “ancestor.” When the interest extends beyond 
the ancestor’s life, it is called a “freehold of inher- 
itance,” aud, when it only endures for the ances- 
tor’s life, it is a frechold not of inheritance. 

An estate to be a freehold must possess these 
two qualities: (1) Immovility, that is, the prop- 
erty must be either land or some interest issuing 
out of or annexed to land; and (2) indeterminate 
duration, for, if the utmost period of time to which 
an estate can endure be lixed and determined, it 
cannot be afreehold. Wharton. 


FREEHOLD IN LAW. A freehold 
which bas descended toa man, upon which 
he may enter at pleasure, but which he has 
not entered on. Termes de la Ley. 


FREEHOLD LAND SOCIETIES. 
Societies in England designed for the pur- 
pose of enabling mechanies, artisans, and 
other working-mengto purchase at the least 
possible price a piece of ireehold land of a 
suficient yearly value to entitle the owner 
to the elective franchise for the county in 
which the land ig situatec. Wharton. 


FREEHOLDER. A person who pos- 
sesses a freehold estate. 


FREEMAN, This word has had various 
meanings at different stages of history. In 
the Roman law, it denoted one who was 
either Lorn free or emancipated, and was 
the opposite of “slave.” In feudal law, it 
designated an allodial proprietor, as distin- 
guished frum a vassal or feudal tenant. In 


520 


are | 


FREIGHT 


old English law, the word described a free- 
holder or tenant by free services; one wha 
was not a villein. In modern legal pbrase- 
ology, if is the appellation of a member of a 
city or borough having the right of suffrage, 
or a member of any municipal corporation 
invested with full civic riglits, 

A person in the possession and enjoyment 
of ail the civil and political rights accorded 
to the people under a free government. 


FREBMAN’S ROLL. A list of persons 
admitted as burgesses or freemen for the 
purposes of the rights reserved by the mu- 
nicipal corporation act, (5 & 6 Wm, IY, 
ce. 76.) Distinguished from the Burgess 
Roll. &Steph. Comm. 197. The term was 
used, in early colonial history, in some of the 
American colonies. 


FREIGHT. Freight is properly the 
price or compensation paid for the trans- 
portation of goods by a carrier, at sea, from 
port to port. But the term is also used to 
denote the hire paid for the carriage of goods 
on land from place to place, (usually by 3 
railroad company, not wn express company.) 
or on inland streams or lakes, The name 
is also applied to the goods or merchandise 
transported by any of the above means. 

Property carried is called “freight;” the 
reward, if any, to be paid for its carriage 
is called “freightage;” the person who de- 
livers the freight to the carrier is called the 
“consignor;” «and the person to whorn it is 
to be delivered is called the “consignee.” 
Civil Code Cal. § 2110; Civil Code Dak. 
§ 1220. 

The term “freight” has several different mean- 
ings, as the price to be paid for the carriage of 
goods, or for the hire of a vessel under a charter 
party or otherwise; and sometimes it designates 
goods carried, as “a freight of lime,” or the like. 
But, as a subject of insurance, it is used in one of 
the two former senses. 10 Gray, 10%. 

The sum agreed on for the hire of a ship, en- 
t.rely orin part, for the carriage of goods from 
one port to another. 18 East, 200. All rewards or 
compensation paid for the use of ships. 1 Pet 
Adm. 206. 

Freight is a compensation received for the trans- 
portation of goudsand merchandise from port to 
port; and is never claimable by the owner of the 
vessel] until the voyage has been performed and 
terminated. 7 Gill & J. 300. 

“Dead freight” is money payable by a per 
son who has chartered a ship and only partly 
londed her, in respect of the loss of freight 
caused to the ship-owner by the deficiency of 
eargo. L. R. 2 H. L. Se. 128. 


Freight is the mother of wages. 2 
Show. 233; 3 Kent, Comm. 196. Where a 


FREIGHTER 


voyage is broken up by vis major, and no 
freight earned, no wages, co nomine, are due. 


FREIGHTER. In maritime law. The 
party by whom a vessel is engaged or char- 
tered; olherwise called the “charterer.” 2 
Steph. Comm. 148. In French law, thecwner 
ofa vessel is called the “freighter,” (freteur ;) 
the merchant whe hires it is called the “af- 
freighter,” (affreteur.) Emerig. Tr. des Ass. 
ch. 11, & 3. 


FRENCHMAN. In early times, in En- 
glish law, this term was applied to every 
stranger or “outlandish” man. Bract. lib. 3, 
ty. 2, co 15, 


FRENDLESMAN. Sax. An outlaw. 
So called because on his outlawry he was de- 
nied all help of friends after certain days. 
Cowell; Blount. 


FRENDWITE. inoldEnglishlaw. A 
mulct or fine exacted from him who harbored 
an outlawed friend. Cowell; Tomlins, 


FRENETICUS. InoldEnglishlaw. A 
madman, or person ina frenzy. Fleta, lib. 
I, c. 36. 


FREQBORGH. A free-surety, or free- 
pledge. Spelman. See FRANK-PLEDGE, 


FREQUENT, 2. 
sort to often or habitually. 
N. E. Rep. 7381. 


Frequentia actus multum operatur. 
The frequency of an act effects much. 4 
Coke, 78; Wing. Max. p. 719, max. 192. A 
eontinual usage is of great effect to establish 
a Tight. 


FRERE. A brother. Frere eyne, elder 
brother. rere puisne, younger brother, 
Britt. ¢. 75. 


FRESCA. In ald records. 
or rain and land flood. 


FRESH DISSEISIN. By the ancient 
common law, where a man had been disseised, 
he was allowed to right himself by force, by 
ejecling the disseisor from the premises, 
without resort to law, provided this was done 
forthwith, while the disseisin was fresh, 
(flagrante cdisseisina.) Bract. fol. 1626, 
No particular time was limited for doing this, 
but Bracton suggested it should be (ifteen 
days. ld. fol. 163. See Britt. ce. 32, 43, 
44, 65. 


FRESH FINE. In old English law. A 
fine that had been levied within a year past. 
St. Westm. 2, c. 45; Cowell. 


To visit often; to re- 
109 Ind. 176, 9 


Fresh water, 


521 


FRIDHEBURGUS 


FRESH FORCE. Force done within 
forty days. Fitzh. Nat. Brev. 7; Old Nat. 
Brey. 4. The heir or reversioner in acase of 
disseisin by fresh force was allowed a remedy 
in chancery by bill before the mayor. Cowell. 


FRESH PURSUIT. A pursuit insti- 
tuted immediately, and with intent to reclaim 
or recapture, after an animal escaped, a thief 
flying with stolen goods, ete. 


FRESH SUIT. In old English law. 
Immediate and unremitting pursuit of an es- 
caping thief. “Such a present and ear- 
nest following of a robberas never ceases from 
the time of the robbery until apprehension. 
The party pursuing then had back again his 
goods, which otherwise were forfeited to the 
crown.” Staunief. P. C. lib. 8, cc. 16, 12; 
1 BI. Comm, 297. 


FRESHET. A flood, or overflowing of a 
river, by means of rains or melted snow; an 


inundation, 8 Phila. 42. 
FRET. (Fr. In French marine law. 
Freight. Ord. Mar. Hy. 3, tit. 3. 


FRETER. Fr. In French marine law. 
To freight a ship; toletit. imerig, Tr. des 
Ags. c. 11, § 3. 

FRETEUR. Fr. InFrench marine law. 
Freighter. The owner of a ship, who lets it 
tothe merchant. Emerig, Tr.dea Ass. c. 11, 
§ 3. A 

FRETTUM, FRECTUM. In old En- 
glish law. The freight of a ship; freight 
money. Cowell, 

FRETUM. A strait, 


FRETUM BRITANNICUM. 
atrait between Dover and Calais. 


The 


FRIARS. An order of religious persons, 
of whom there were four principal branches, 
viz: (1) Minors, Grey Friars, or Franeis- 
cans; (2) Augustines; (3) Dominicans, or 
Black Friars; (4) White Friars, or Carmel- 
ites, from whomtherestdescend. Wharton. 


FRIBUSCULUM. Inthecivillaw. A 
temporary separation between husband and 
wife, caused by a quarrel or estrangement, 
but not amounting to a divorce, because not 
accotupanied with an intention to dissolve 
the marriage. 


FRIDBORG, FRITHBORG, Frank. 


| pledge. Cowell. Security for the peace. Spel- 


man. 


FRIDHEURGUS. In old English law. 
A kind of frank-pledge, by which the lords or 


FRIEND OF THE COURT 


principal men were made responsible for their 
dependents or servants. Bract. fol, 1246. 


FRIEND OF THE COURT. See Ami 
ous CURLE. 


FRIENDLESS MAN. In old English 
Jaw. An outlaw; so called because he was 
denied all help of friends. Dract. lib, 3, tr. 
ec, 12, ? 


FRIENDLY SOCIETIES. In English 
law. Associations supported by subscrip- 
tion, for the relief and maintenance of the 
members, or their wives, children, relatives, 
and nominees, in sickness, infancy, advanced 
age, widowhood, ete. The statutes regulat- 
ing these societies were consolidated and 
amended by St. 38 & 39 Vict. c. 60. Whar- 
ton. 


FRIENDLY SUIT. A suit brought by 
a creditor in chancery against an executor or 
administralor, being really a suit by the ex- 
ecutor or administrator, in the name of a 
creditor, against himself, in order to compel 
the creditors to take an equal distribution of 
the assets. 2 Williams, Ex'rs, 1915. 

Also any auit instituted by agreement be- 
tween the parties to obtain the opinion of the 
court upon some doubtful question in which 
they are interested. 


FRIGIDITY. Johnson. 


FRILINGI. Persons of free descent, or 
freemen born; the middie class of persons 
among the Saxons. Spelman. 


Impotence. 


FRISCUS. Fresh uncultivated ground. | 


Mon. Angl. t. 2, p. 56. Fresh; not salt. 
Reg. Orig.97. Recentor new. See Fresn, 
and sulisequent titles. 


FPRITHBORG. Frank-pledge. Cowell. 


FRITHBOTEH. Asatisfaction or fine for 
a breach of the peace. 


FRITHBREACH, The breaking of the 
peace. Cowell. 


FRITHGAR.. The year of jubilee, or of 
meeting for peace and friendship. Jacob, 


FRITHGILDA. Guildhall; a company 
or fraternity for the maintenance of peace 
and security; also a fine for breach of the 
peace. Jacob. 


FRITHMAN. <A member of a company 
or fralernity. Blount. 


FRITHSOCNE. Suraty of defense. 
Jurisdiction of the peace. The franchise of 
preserving the peace. Cowell; Spelman. 


522 


FRUCTUS CIVILES 


FRITHSPLOT. A spot or plot of land, 
encircling some stone, tree, or well, consid- 
ered sacred, and therefore affording sanct- 
uary to criminals, 


FRIVOLOUS. An answer or plea is 
called “frivolous” when itis clearly insuti- 
cient on its face, and does not controvert the 
material points of the opposite pleading, and 
is presumably interposed for mere purposes 
of delay or to embarrass the plaintiff. 

A frivolous demurrer has heen defined to 
be one which ig so clearly untenable, or its 
insullicieney so manifest upon a bare inspec- 
tion of the pleadings, that its character may 
be determined without argument or research. 
40 Wis. 558. 


FRODMORTEL, cr FREOMORTEL. 
An immunity for committing manslaughter, 
Mon. Angl. t. 1, p. 1738. 


FRONTAGE—FRONTAGER. In En- 
plish law a frontager is a person owning or 
occupying land which abuts on a highway, 
Tiver, sea-shore, or the like. The term is 
generally used with reference to the liability 
of frontagers on streets to contribute towards 
the expense of paving, draining, or other 
works on the highway carried out by a local 
authority, in proportion to the frontage of 
their respective tenements. Sweet. 


FRUCTUARIUS. Lat. In the civil 
Jaw. One who had the usufruct of a thing; 
i. e., the use of the fruits, prolits, or increase, 
as of lund or animals, Inst. 2, 1, 36, 38. 
Bracton applies it to a lessee, fermor, or 
farmer of land, or one who held lands ad 
Jirmam, for afarm or term. Bract. fol. 261. 


FRUCTUS. Lat. In thecivil law. Fruit, 
fruits; produce; protit or increase; the or- 
| ganic productions of athing. Fructus fundi, 
the fruits of land. Fructus pecudum, the 
produce of flocks. 

The right tothe fruits of a thing belonging 
to another. 

The compensation which 2 man receives 
from another for the use or enjoyment of a 
thing, such asinterestorrent. See Mackeld. 
Rom. Law, § 167; Inst. 2, 1, 35, 37; Dig. 7, 
1, 33; Id. 5, 3, 29; Id. 22, 1, 34. 


Fructus augent hreditatem. The 
yearly inerease goes to enchance the inherit- 
ance. Dig. 5, 3, 20, 3. 


FRUCTUS CIVILES. (Lat. Civil fruits.) 
All revenues and recompenses which, thougna 
not fruits, properly speaking, are recoynized 
| as such by the law. 


SN a ee ee SS ES 


FRUCTUS INDUSTRIALES © 


FRUCTUS INDUSTRIALES, Indus- 
trial fruits, or fruits of industry. Those 
fruits of a thing, as of land, which are pro- 
duced by the labor and industry of the occu- 
pant, as erops of grain; as distinguished from 
such as ure produced solely by the powers of 


nature. Emblements are so called in the com- 
mon law. 2 Steph. Comm. 258; 1 Chit. Gen. 
Pr. 92. 


FRUCTUS NATURALKES. Those prod- 
uets which are produced by the powers of 
nature alone; as wool, metals, milk, the 
young of animals. 


FRUCTUS PENDENTES. MHanging 
fruits; those not severed. The fruits united 
with the thing which producesthem. These 
form a part of the principal thing. 


Fructus pendentes pars fundi viden- 
tur. Hanging fruits make part of the land, 
Dig. 6, 1, 44; 2 Bouv. Inst. no. 1578. 


Fructus perceptos villes non esse con- 
stat, Gathered fruits do not make a part of 
the farm, Dig. 19, 1, £7, 1; 2 Bouv. Inst 
no. 1578. 


FRUCTUS REI ALIEN A. The fruits 
of another's property; fruits taken from an- 
other's estate. 


FRUCTUS SEPARATI. In the civil 
law. Separate fruits; the fruits of a thing 
when they are separated from it. Dig. 7, 4, 
13. 

FRUGES. In the eivillaw. Anything 
produced from vines, underwood, chalk-pits, 
stone-quarries. Dig. 50,16, 77. 

Grains and leguminous vegetables. Ina 
More restricted sense, any eseulent growing 
In pods. Vicat, Voce. Jur.; Calvin. 


FRUIT. The produce of a tree or plant 
which contains the seed or is used for food. 

This term, in legal acceptation, is not con- 
fined to the produce of tlose trees which in 
popular language are called “fruit trees,” but 
applies also to the produce of oak, elm, and 
walnut trees. 5 Barn. & C, 847. 


FRUIT FALLEN. The produce of any 
possession detached therefrom, and capable 
ef being enjoyed by itself. Thus, a next 
presentation, when a vacancy has oceurred, 
is a fruit fallen from the advowson. Whar- 
ton. 


FRUITS OF CRIME. In the law of 
evidence. Material objects acquired by means 
and in consequence of the commission of 
crime, and sometimes constituting the sub- 


523 


| which is never exercised. 


FRUSTRA PETIS QUOD, ETC. 


ject-matter of the crime. 
445: 4 Benth. Jud. Ev. 31. 


Frumenta guce sata sunt solo cedere 
intelliguntur. Grain which is sown is un- 
derstood to fern. a part of the soil, Inst. 2. 
1, 32. 


Burrill, Cire. Ev, 


FRUMENTUM, Inthecivillaw. Grain. 
That which grows 'nanear, Dig. 50, 16,77. 


FRUMGYLD. Sax. Tha first payment 
made to the kindred of a slain person in rec- | 
ompense for his murder. Blount. 


FRUMSTCLL. Sax. InSaxonlaw. A 
chief seat, or mansion house. Cowell. 


FRUSCA TERRBA. Inoldrecords. Un- 
cultivated and desert ground. 2 Mon, Angl. 
327; Cowell. 


FRUSSURA. A breaking; plowing. 
Cowell. 


Frustra «git qui judicium prosequi 
nequit eum eifectu. NHesues to no purpose 
who cannot prosecute his judgment with ef- 
fect, [who cannot have the fruits of his judg- 
ment.] Fleta, lib. 6, ¢. 37, § 9. 


Frustra [vana] est potentia que nun- 
quam venit in actum. That power is to 
no purpose which never comes into act, or 
2 Coke, 51, 


Frustra expectatur eventus cujus ef- 
fectus nullus sequitur. An eventis vainly 
expected from which no effect follows. 


Frustra feruntur leges nisi subdcitis et 
obedientibus. Laws are made to no pur- 
pose, except for those that are subject and 
obedient, Branch, Prine. 


Frustra fit per plura, quod fieri potest 
per pauciora. That is done to no purpose 
by many things which can be done by fewer. 
Jenk. Cent. p. 68, case 28. The employment 
of more means or instruments for effecting a 
thing than are necessary is to no purpose. 


Frustra legis auxilium invoeat [queerit] 
qui in legem committit. He vainly in- 
vokes the aid of the law who transgresses the 
law. Fleta, lib. 4, ¢. 2, § 3; 2 Hale, P. C. 
386; Broom, Max. 279, 297. 


Frustra petis quod mox es restiturus. 
In vain you ask that which you will have 
immediately to restore. 2 Kames, Eq. 104; 
5 Man. & G. 757. 


Frustra petis quod statim alteri red- 
dere cogeris. Jenk. Cent. 256. You ask 


FRUSTRA PROBATUR, ETC. 


in vain that which you might immediately 
be compelled to restore to another. 


Frustra probatur, quod probatum non 
relevat. That is proved to no purpose which, 
when proved, does not help. Halk. Lat. 
Max. 50. 


FRUSTRUM TERRA, A pieceor par- 
eel of Jand lying by itself. Co. Litt. 5d. 


FRUTECTUM. Inoldrecords. A place 
overgrown with shrubs and bushes. Spel- 
man; Blount. 


FRUTOS. In Spanish law. Fruits; 
products; produce; grains; profits. White, 
New Recop. b. 1, tit. 7, ¢. 5, § 2 


FRYMITH. In old English law. Tho 
affording harbor and entertainment to any 
one. 


FRYTHE. Sax. In old English law. 
A plain between woods. Co. Litt. 50. 

An arm of the sea, or a strait between 
two lands. Cowell. 


FUAGE, FOCAGE. Hearthmoney. A 
tax laid upon each fire-place or hearth. An 
imposition of a shilling for every hearth, 
levied by Edward III. in the dukedoin of 
Aquitaine. Spelman; 1 Bl. Comm. 324. 


FUER. In old English Jaw. Flight. It 
is of two kinds: (1) Fuer in fait, or in 
facto, where a person does apparently and 
corporally flee; (2) fuer in ley, or in lege, 
when, being called in the county court, he 
does not appear, which legal interpretation 
makes dight. Wharton. 


FUERO. 
code. 

A general usage or custom of a province, 
having the force of law. Ir contra fuero, 
to violate a received custom. 

A grant of privileges and immunities. 
Conceder fueros, to grant exemptions. 

A charter granted to a city or town. 
designated as “cartas puetlas.” 

An act of donation made to an individual, 
a church, or convent, on certain conditions, 

A declaration of a magistrate, in relation 
to taxation, fines, etc. 

A charter granted by the sovereign, or 
those having authority from him, establish- 
ing the franchises of towns, cilies, ete. 

A place where justice is administered, 

A peculiar forum, before which e party is 
amenable. 

The jurisdiction of a tribunal, which is 
entitled to take cognizance of a cause; as 


In Spanish law. A law; a 


Also 


524 : 


eS ne ee ee ee Se ee 


FUGITATE 


Suero ecclesiastico, fucto militar. SeeSehm. 
Civil Law, Introd. 64. 


FUERO DE CASTILLA. In Spanish 
law. The body of laws and customs which 
formerly governed the Castilians. 


FUERO DE CORREOS Y CAMI- 
NOS. InSpanish law. A special tribunal 
taking cognizance of all matters relating ta 
the post-oflice and roads. 


FUERO DE GUERRA. In Spanish 
law. <A special tribunal taking cognizance 
of all matters in relation to persons serving 
in the army. 


FUERO DE MARINA. In Spanish 
law. A special tribunal taking cognizance 
of all matters relating to the navy and to the 
persons employed therein. 


FUERO JUZGO. Span. The Forum 
Judicium,; acode of laws established in the 
seventh century for the Visigothie kingdom 
jn Spain. some of its principles and ruleg 
are found surviving in the modern jurispru- 
dence of that country. Schm, Civil Law, In- 


trod. 28. 
FUBRO MUNICIPAL. In Spanish 
law. The body of laws granted to a city or 


town for its government and the administra- 
tion of justice. 


EFUERO REAL. The title of a code of 
Spanish law promulgated by Alphonso the 
Learned, (ef Sabio,) A.D. 1255. It was the 
precursor of the Partidas. Schm. Civil Law, 
Introd. 67. 


FUERO VIEJO. The title of a com- 
pilation of Spanish Jaw, published about A, 
D, 992. Schm. Civil Law, Introd. 65. 


FUGA CATALLORUM. In old En- 
glish law. A drove of cattle. Blount, 


FUGACIA., Achase. Blount, 


FUGAM FECIT. Lat. He has made 
Hight; he fled. A clause inserted in an inqui- 
sition, inold English law, meaning that a per- 
son indicted for treason or felony had fled. 
The effect of this is to make the party forfeit 
his goods absolutely, and the protits of lis 
lands until he has been pardoned or ac- 
quitted. 


FUGATOR. In old English law. A 
privilege to hunt. Blount. 
Adriver, Mugaiores carrucarum, drivers 


of wagons. Feta, lib. 2, c. 78. 


FUGITATE. In Seotch practice. To 


outlaw, by the sentence of a court; to out- 


FUGITATION 525 


law for non-appearance in a criminal case. 
2 Alis. Crim. Pr. 350. 


FOGITATION. In Seoteh law. When 
aeriminal does not obey the citation to an- 
swet, the court pronounces sentence of fu- 
gitation against him, which induces a for- 
feiture of goods and chattels to the crown. 


FUGITIVE FROM JUSTICE. A per- 
son who, having committed a crime, flies 
from the state or country where it trans- 
pired, in order to evade arrest and escape 
justice. 


FUGITIVE OFFENDERS. In En- 
glish law. Where a person accused of any 
offense punishable hy imprisonment, with 
hard labor for twelve months or more, has 
left that part of her majesty’s dominions 
where the offense is alleged to have been 
committed, he is liable, if found in any other 
part of her majesty’s dominions, to be appre- 
hended and returned in manner provided by 
the fugitive offenders’ act, 1881, to the part 
from which be is a fugitive. Wharton. 


FUGITIVE SLAVE. One who, held in 
bondage, flees from his master’s power. 


FUGITIVUS. Inthecivil law. A 
fugitive; a runaway slave. Dig. 11,4; Cod. 
6, 1. See the various definitions of this 
word in Dig. 21, 1, 17. 


FULL. Complete; exhaustive; detailed. | 
A “full” answer 1s as extensive a term, in 
describing one which is ample and sufficient, 
a3 though the term “complete” had been su- 
peradded. 22 Ala, 817 


FULL AGH, In common law. The age 
of twenty-one years, in males and females, 
Litt. § 259; 1 BI. Comm. 463. 


In the civiliaw. The age of twenty-five 
years, in males and females, Inst.1, 23, pr. | 


FULL BLOOD. A term of relation, 
denoting descent from the same couple. | 
Brothers and sisters of ful/ blood are those whe | 
are born of the sume father and mother, or, 
as Justinian calls them, “ex utroque purente 
conjuncti.” Nov. 116, cc. 2, 3; Mackeld. 
Rom. Law, § 145. The more usual term in 


modern law is “whole blood,” (qg. ©.) 


FULL COURT. In practice. A court 
in banc. A court duly organized with all 
the judges present. 


FULL DEFENSE. In pleading. The 
formula of defense in a plea, stated at length 
and without abbreviation, thus: “And the 
said C. D., by E. F., his attorney, comes and | 


FUND 


defends the force (or wrong) and injury when 
and where it shall behoove him, and the dam- 
ages, and whatsoever else he ought to defend, 
and says,” etc. Steph. Pl. p. 481. 


FULL LIFE. Life in fact and in law. 
See In Furu Lire. 


FULL PROOF. In the civil law. Proof 


| by two witnesses, or a public instrument. 


Hallifax, Civil Law, b. 3, c. 9, nn. 25, 50; 
3 Bi. Comm. 370. 

Evidence which satisfies the minds cf the 
jury of the truth of the factin dispute, to the 
entire exclusion of every reasvnable doubt. 
88 N. J. Law, 450. 


FULL RIGHT. The union of a good 
title with actual possession. 


FULLUM AQUA. A fleam, or stream 


of water. Blount. 
FUMAGE. In old English law. The 
same as fuaye, or smoke farthings. 1 Bl. 


Comm, 824. See Fuaae, 


FUNCTION. Otiice; duty; fulfillmont 
of a definite end or set of ends by the correct 
adjustment of means, The occupation of ar 


| Office. By the performance of its duties, the 


Officer ig said to fill his function. 
6a, 1. 
FUNCTIONARY. A public officer or 


employe. An officer of a private corporation 
ig also sometimes so called. 


FUNCTUS OFFICIO. Lat. Having ful- 
filled the funetion, discharged the office, or 
accomplished the purpose, and therefore of 
no further foree orauthority. Applied toan 
officer whose term has expired, and who has 
consequently no further ollicial authority; 
and also to an instrument, power, agency, 
ete., which has fulfilled the purpose of its 
creation, and ia therefore of no further vir- 
tue or effect. 


FUND, v. To capitalize, with a view to 
the production of interest. 24N.J. Eq. 876. 


To fund a debt isto pledge a specific fund to keep 
down interest and reduce the principal, When 
extinguishment of the debt is the object promi- 
nently contemplated, the provision is called a“ sink- 
ing fund.” The term “fund” was originally ap- 
plied to a portion of the national revenue set apart 
or pledged to the payment of a particular debt. 
Hence a funded debt was a debt for the payment 
of the principal or interest of which some fund was 
appropriated. 14 N. Y. 856, 367, 877; 21 Barb. 294. 


Dig. 82, 


FUND, n. A sum of money set apart for 
a specific purpose, or available for the pay- 
ment of debts or claims. 


G 


FUND 


In its narrower and more usual sense, “fund” 
signifies “capital,” as opposed to “interest” or 
*income;” as where we speak of a corporation 
funding the arrears of interest due on its bonds, 
or the like, meaning that the iutcrest is capitalized 
and made to bear interest in its turn until it is re- 
paid. Sweet. 


FUNDAMENTAL .~LAW. The law 
which determines the constitution of govern- 
ment in a state, and prescribes and regulates 
the manner of its exercise; the organic law of 
a State; the constitution. 


FUNDAMUS. We found, One of the | 


words by which a corporation may be created 
in Englind. 1 Bl. Comm. 473; 3 Steph. 
Comm. 173. 


FUNDATIO. A founding or foundation. 
FUNDATOR. A founder, (q. 2.) 


FUNDI PATRIMONIALES. Lands of 
inheritance. 


FUNDING SYSTEM. The practice of 
borrowing money to defray the expenses of 
government, and creating a “sinking fund,” 
designed to keep down interest, and to effect 
the gradual reduction of the principal debt. 


FUNDITORES. Pioneers. Jacob. 


YUNDS. 1. Money in hand; cash; money 
available for the payment of a debt, leg- 
acy, etc. 

2. The proceeds of sales of real and per- 
sonal estate, or the proceeds of any other as- 
sets convertedinto money. 43 N.J. Eq. 533. 

3. Corporate stucks or government secu- 
rities; in this sense usually spuken of as the 
“funds.” 

4, Assets, securities, bonds, or revenue of 
astate or government appropriated for the 
discharge of its debts. 


FUNDUS. In the civil and old English 
law. Land; land or ground generally; land, 
without considering its specific use; land, in- 
cluding buildings generally; a farm. 


FUNERAL EXPENSES. Money ex- 
pended tn procuring the interment of a corpse. 


FUNGIBILES RES. Lat. <A term ap- 
plied in the civil law to things of such a nat- 
ure as that they could be replaced by equal 
quantities and qualities, because, mutwa vice 
Junguntur, they replace and represent euch 


other; thus, a bushel of wheat. A particular | 


horse would not be fungibilis res, Sandars, 
Just. Insts (5th Ed.) 322. 


FUNGIBLE THINGS. Movable goods 


which may be estimated and replaced acesrd- | 


526 FURIOSUS ABSENTIS LOCO EST 


ing to weight, measure, and number. Thinga 
belonging to a class, which do not have to be 
dealt with in specie, 

Those things one specimen of which ia as good as 
another, as is the case with half-crowns, or pounds 
of rice of the same quality. Horses, slaves, and so 
forth, are uon-fungible things, because they differ 
individually in value, and cannot be exchanged in- 
differently one for another. Holl. Jur. 88. 

Where a thing which is the subject of an obliga- 
tion (which one man is bound to deliver to an- 
other) must be delivered in specie, the thing is not 
fungible; that very individual thing, and not an- 
other thing of the same or another class, in lien of 
it, must be delivered. Where the subject of the 
obligation is athing of a given class, the thing is 
suid to be fungible; t. ¢., the delivery of any object 
which answers to the generic description will sat- 
isfy thetermsoftheobligation. Aust. Jur, 483, 494. 


FUR Lat. A thief. One who stole se- 
cretly or without force or weapons, as opposed 
to robber. 


FUR MAWIFESTUS. Lat. In the 
civillaw. A manifest thief. A thief who 
is taken in the very act of stealing. 


FURANDI ANIMUS. Ano intention of 
stealing. 


FURCA. A fork. A gallows or gibbet. 
Bract. fol. 56. 


FURCA ET FLAGELLUM. In old 
English law. Gallows and whip. Tenure 
ad fuream et flagellum, tenure by gallows 


| and whip. The meanest of servile tenures, 


where the bondman was at the disposal of 
his lord for life and limb, Cowell. 


FURCA ET FOSSA. In old English 
law. Gallows and pit, or pit and gallows. 
A term used in ancient charters to signify 
a jurisdiction of punishing thieves, viz., men 
by hanging, women by drowning. Spelman; 
Cowell. 


FURIGELDUM. A fine or mulet paid 
for theft. . 


Furiosi nulla yoluntas est. A madman 
has no will. Dig. 50, 17, 40; Broom, Max. 
314, 


FURIOSITY. InScotchlaw. Madness, 
as distinguished from fatuity or idiocy. 


FURIOSUS. An insane man; a mad- 
man; a lunatic. 


Furiosus absentis loco est. A madman 
is the same with an absent person, [that is, 
his presence is of no effect.] Dig. 50, 17, 
24, 1. 


FURIOSUS NULLUM, ETC. 


Furiosus nullum negotium contrahere 
potest. A madman can contract nothing, 
fean make no contract.] Dig. 50, 17, 5. 


Puriosus solo furore punitur. A mad- 
man is punished by his madness alone; that 
is, he ig not answerable or punishable for his 
actions, Co. Litt. 2476; 4 Bl. Comm. 24, 
896; Broom, Max. 15. 


Furiosus stipulare non potest nec ali- 
guid negotium agere, qui non intelligit 
quid agit. 4 Coke, 126. A madiman who 
knows not what he does cannot make a bar- 
gain, nor transact any business. 


FURLINGUS. A furlong, or a furrow 
one-eighth part of a milelong. Ca, Litt. 5d. 


FURLONG. A measure of length, be- 
ing forty poles, or one-eiglith of a mile. 


FURLOUGH. Leave of absence; espe- 
clally, leave given to a military or naval of- 
ficer, or soldier or seaman, to be absent from 
service tor « certain time. Also the docu- 
ment granting leave of absence. 


FURNAGEH. See Fornacioum; Four. 


FURNITURE. This term includes that 
which furnishes, or with which anything is 
furnished or supplied; whatever must be 
supplied to a house, a room, or the like, to 
make it habitable, convenient, or agreeable; 
goods, vessels, utensils, and other append- 
ages necessary or convenient for housekeep- 
ing; whatever is added to the interior of a 
house or apartment, for use or convenience. 
27 ind. 173. 

The term “furniture” embraces everything about 
the house that has beeu usually enjoyed therewith, 
including plate, linen, china, and pictures. 41 N. 
J. Eq. 96, 

The word “furniture” made use of in the dispo- 
sition of the law, or in the conventions or acts of 
persons, comprehends only such furniture ag is in- 
tended for use and ornament of apartments, but 
not libraries which happen to be there, nor plate. 
Civil Code La. art. 477. 


FURNITURE OF A SHIP. Thisterm 
Includes everything with which a ship re- 
quires to be furnished or equipped to make 
her seaworthy; it comprehends all articles 
furnished by ship-chandlers, which are al- 
most inuumerable. 1 Wall. Jr. 369. 


FURNIVAL’S INN. Formerly an inn 
of chancery. See Inns OF CHANCERY. 


Furor contrahi mairimonium non 
ainit, quia consensu opus est. Insanity 
prevents marriage trom being contracted, be- 
cause consent is needed. Dig. 23, 2, 16, 2; 


527 


a 


FURTHER MAINTENANCE, ETC. 


1 Ves. & 13. 140; 1 Bl. Comm. 489; 4 Jobns. 
Ch. 543, 345. 


FURST AND FONDUNG. Inold En- 
glishlaw. Time to advise or take counsel. 
Jacob, 

FURTHER ADVANCE. A second or 
subsequent loan of money to a mortgagor by 
a mortyagee, either upon the same security 
as the original loan was advanced upon, or 
an additional security. Equity considers the 
arrears of interest on a mortgaye security 
converted into principal, by agreement be- 
tween the parties, as a furlher advance. 
Wharton. 


FURTHER ASSURANCE, COVE- 
NANT FOR. Oneofthe usual agreements 
entered into by a vendor for the protection of 
the vendee’s interest in the subject of pur- 
chase. It seams to be confined to an agree: 
ment that the grantor will execute any fur- 
ther instruments of conveyance that may be 
lawfully required, and not to extend to fur- 
ther obligations to be imposed on the cove- 
nantor by way of covenant. Sugd. Vend. 500. 


FURTHER CONSIDERATION, In 
English practice, upon a motion for judg- 
ment or application for a new trial, the court 
may, if it shall be of opinion that it has not 
sufficient materials before it to enablo it to 
give judgment, direct the motion to stund 
over for further consideration, and direct 
such issues or questions to be tried or <e- 
termined, and such accounts and inquiries to 


be taken and made, as it may think fit. Rules 
Sup. Ct. xl, 10. 
FURTHER DIRECTIONS. When a 


master ordinary in chancery made a report in 
pursuance of a decree or decrelal order, the 
cause was again set down before the judge 
who made the decree or order, to be proceeded 
with. Where a master made a separate re- 
port, or one not in pursuance of a decree or 
decretal order, a petition for consequential 
directions had to be presented, since the cause 
could not be set down for further direcLions 
under such circumstances. See 2 Daniell, 
Ch. Pr. (5th Ed.) 1233, note. 


FURTHER HEARING. 
Hearing at another time. 


FURTHER MAINTENANCE OF 
ACTION, PLEA TO. A plea grounded 
npon some fact or facts which have arisen 
since the commencement of the suit, and 
which the defendant puts forward for the 
purpose of showing that the plaintiff should 
not further maintain his action. Browa. 


In practice. 


FURTIVE 


FURTIVE. Inold Englishlaw. Stealth- 
lly; by stealth. Fleta, lib. 1, c. 38, § 3. 


FURTUM. Lat. Theft. The fraudu- 
Jent appropriation to one’s self of the property 
of another, withan intention to commit theft 
without the consent of the owner. Fleta, 1. 
1, c. 36; Bract. fol. 150; 3 Inst. 107. 

The thing which has been stolen. 
fol. 151. - 


FURTUM CONCEPTUM. In Roman 
law. The theft which was disclosed where, 
upon searching any one in the presence of 


Bract. 


witnesses in due form, the thing stolen was | 


discovered in his possession. 


Furtum est contrectatio rei aliens 
frandulenta, cum animo furandi, invito 
illo domino cujus res illa fuerat. 
107, Theft is the fraudulent handling of an- 
other's property, with an intention of steal- 
ing, against the will of the proprietor, whose 
property it was. 


FURTUM GRAVE. InSecotehlaw. An 
aggravated degree of theft, anciently pun- 
ished with death. It still remains an open 
point what amount of value raises the theft 
to this serious denomination. 1 Broun, 352, 
note. See 1 Swint. 467. 


FURTUM MANIFESTUM. Open 
theft. Theft where a thief ts caught with 
the property in his possession. LBracé. fol. 
1506, 

Furtum non est ubi initinm habet de- 
tentionis per dominium rei. 3 Inst. 107. 
There is no theft where the foundation of 
the detention is based upon ownership of the 
thing. 


FURTUM OBLATUM. In the civil 
law. Offered theft. Obdlatuwm furtum dici- 
tur cum ves furtiva ab aliquo tibt oblata sit, 
eaqgue apud te concepta sit. Theft is called 
“oblatum” when a thing stolen is offered to 
you by any one, and found upon you. Inst. 
4,1, 4. 


FUSTIGATIO. Inold English law. A 
beating with sticks or clubs; one of the an- 
cient kinds of punishment of malefactors. 
Bract. fol. 1048, lib. 3, tr. 1, ¢. 6. 


FUSTIS. 
used in making livery of seisin. 
40. 

A baton, elup, or cudgel. 


FUTURE DEBT. In Scotch law. A 
debt which is created, but which will not be- 
come due till a fulure day. 1 Bell, Comm. 
815. 


In old English law. A staff, 
Braet, fol. 


8 Inst. | 


528 


FYRD-WITE 


FUTURE ESTATE. An estate which is 
not now vested in the grantee, but is to com- 
mence in possession at some future time. It 
includes remainders, reversions, and estates 
limited to commence iz futuro without a par- 
ticular estate to support them, which last are 
not good at coimmon law, except in the case 
of chattel interests. See 2 Bl. Comm, 165. 

An estate limited to commence in posses- 
sion at a future day, either without the in 
tervention of a precedent estate, or on the 
determination by lapse of time, or otherwise, 
of a precedent estate created at the same 
time. 11 Rev. St. N. ¥. (dd Ed.) § 10. 


“FUTURES.” This term has grown out 
of those purely speculative transactions, in 
which there is a nominal contract of sale for 
future delivery, but where in faet none is 
ever intended or executed. The nominal 


| seller does not have or expect to have the 


stock or merchandise he purports to sell, nor 
does the nominal buyer expect to receive it 
or to pay the price. Instead of that, a per- 
centage or margin is paid, which is increased 
or diminished as the market rates go up or 
down, and accounted for to the buyer. 14 
KR. I, 188. 


‘FUTURI. Those who aretobe. Partot 
the commencement of old deeds. “Sciant 
presenics et futurt, quod ego taltis, dedi et 
concessi,” etc., (J.et all men now living and 
to come know that I, A, B., have, ete.) 
Bract. fol. 34d. 


FUZ, or FUST. A Celtic word, meaning 
a wood or forest. 


FYHTWITE. One of the fines incurred 
for homicide. 


FYKE. <A bow-net for catching fish. 
Pub. St. Mass. 1882, p. 1291. 


FYLE. In old Scotch law. To defile; to 
declare toul or defiled. Hence, to find a 
prisoner guilty. 


FYLIT. In old Scotch practice. 
found guilty. See Fy. 


FYNDERINGA. Sax. An offense or 
trespass fur which the fine or compensation 
wus reserved fo theking’s pleasure. Its nat- 
ure is not known. 


FYRD. The military array or land force 
of the whole country. Contribution to the 
fyrd was one of the imposts forming the 
trinoda necessitas. 


FYRD-WiTH. The fine incurred by 
neglecting to join the fyrd; one of the rights 
of the crown. 


Fyled; 


GAMACTA 


Go 


G. Inthe Law French orthography, this 
letter is often substituted for the English W, 
particularly as an initial. Thus, “gage” for 
“wage,” “garranty” for “warranty,” “gasb” 


for “waste.” 


GABE. An excise; a tax on movables; 
arent, custom, or service. Co. Litt. 213. 


GABELLA. A tax or duty on personalty. 
Cowell; Spelman. 


GABLATORSS. 
gavel, rent, or tribute. 


GABLUM. A rent; a tax. Domesday; 
Du Cange. The gable-end of a house. Cowell. 


Rent 


Persons who paid 
Domesday; Cowell. 


‘GABULUS DENARIORUM. 
paid in money. Seld. Tit. Hon. 321. 


GAFFOLDGILD. The payment of cus- 
tom or tribute. Scott. 


GAFFOLDLAND. Property subject to 
the galffoldgild, or liable to be taxed. Scott. 


GAFOL. The same word as “gabel” or 
“oavel.” Rent; tax; interest of monoy. 


GAGE, ». InoldEnglishlaw. Topawn 
or pledge; to give as security for a payment 
or performance; to wage or wager, 


GAGH, m. In old English law. A 
pawn or pledge; something deposited as se- 
curity for the performance cf some act or the 
payment of money, anid to be forfeited on 
failure or non-performance. Glany. lib. 10, 
c. 6; Britt. ¢. 27. 

A mortgage is a dead-gage or pledge; for, what- 
soever profit it yields, it redeems not itself, unless 
the whole amount secured is paid at the appointed 
ame. Cowell. 

In French law. The contract of pledge 
or pawn; also the article pawned. 


GACH, ESTATES IN. Those held in 
vadio, or pledge. They areoftwo kinds: (1) 
Vivum vadium, or living pledge, or vifgage; 
(2) moriuwim vadium, or dead pledge, better 
known as “mortgage.” 


GACGER Dili DELIVERANCE. Inold 
English law. When he who has distrained, 
being sued, has not delivered the cattie dis- 
trained, then he shall not only avow the dis- 
tress, but gager deliverance, ¢, e., put in 
surety or pledge that he will deliver them. 
Fitzh. Nat. Brev. 

AM. DICT, LAW—34 


GAGER DEDL LEY. 
(gq. 0.) 


GAIN, Profits; winnings; increment of 
value. 


GAINAGE. The gain or profit of tilled 
or planted land, raised by cultivating it; and 
the dranght, plow, and furniture for carry- 
ing on the work of tillage by the baser kind 
of sokemen or villeins. Pract. 1. i.c. 9. 


GAINERY. Tillage, or the profit arising 
from it, or from the beasts employed therein. 


GATINOR. 


Wager of law, 


Inold English law. <A soke- 


| man; one who occupied or cultivated arable 


land. Old Nat. Brey. fol. 12. 
GAJUM. <A thick wood. Spelman. 


GALE. The payment of arent, tax, duty, 
or annuity. 

A gale is the right to open and work a mine 
within the Hundred of St. Briavel's, or a 
ston6 quarry within the open lands of the 
Forest of Dean. The right is a license or 
inferest in the nature of rea! estate, conii- 
tional on the due payment of rent and ob- 
servanee of the obligations imposed on the, 
galee. It follows the ordinary rules as to the 
devolution and conveyance of real estate. 
The galee pays the crown a rent known as a 
“galeage rent,” “royalty,” or some similar 
name, proportionate to the quantity of min- 
era's got from the mins or quarry, Sweet. 


GALEA. In old records. A_ piratical 
vessel; a galley. 

GALENES. InoldScotechlaw. Amends 
or compensation for slaughter. Bell. 


GALLI-HALYPENCE. A kind of coin 
which, with suskins and doitkins, was for- 
bidden by St. 3 Hen. V. ec. 1. 


GALLIVOLATIUM. A cock-shoot, or 
cock-glade. 


GALLON. A liquid measure, containing 
231 cubic inches, or four quarts. The tm- 
perial gallon contains about 277, and tha ale 
gallon 282, cubic inclies. 


GALLOWS. A scaffold; a beam laid 
over either one or two posts, from which male- 
factors are hanged. 


GAMACTA. In old European law. A NM 


stroke or blow. Spelman. 


GAMALIS 


GAMATLIS. A child born in lawful wed- 
lock; also one born to betrothed but unmar- 
ried parents. Spelman. 


GAMBLE. The word “gamble” is per- 
haps the most apt and substantial to convey 
the idea of unlawful play that our language 
affords. It is inclusive of hazarding and bet- 
ting as well as playing. 2 Yerg. 474. 


GAMBLER. One who follows or prac- 
tices games of chance or skill, with the ex- 
pectation and purpose of thereby winning 
money or other property. 113 Mass, 193. 


GAMBLING. See Gamina, 


GAMBLING DEVICE. A machine or 
contrivance of any kind for the playing of 
an unlawful game of chance or hazard. 


GAMBLING POLICY. In life insur- 
ance. One issued to a person, as benoliciary, 
who has no pecuniary interest in the life in- 
sured. Otherwise called a “wager policy.” 
50 Mo. 47. 


GAME. Birds and beasts of a wild nat- 
ure, obtained by fowling and hunting. Ba- 
con, Abr. See 11 Metc. (Mass.) 79. The 
term is said to include (in England) hares, 
pheasants, partridges, grouse, heath or moor 
game, black game, and bustards. Brown, 
See 1&2 Wm. IV. ce. 32. 

A sport or pastime played with cards, dice, 
or other contrivance. See GAMING. 


GAME-KEEPER. One who has the 
care of keeping and preserving the game on 
an estate, being appointed thereto by a lord 
of @ manor. 


GAME-LAWS. Laws passed for the 
preservation of game. They usually forbid 
the killing of specified game during certain 
seasons or by certain described means. .As to 
English game-laws, see 2 Steph. Comm. 82; 
1&2 Wm. IV. c. 82. 


GAMING. The act or practice of play- 
ing games for stakes or wagers; gambling; 
the playing at any game of hazard. An 
agreement between two or more persons to 
play togetherat a game of chance for a stake 
or wager which is to become the property of 
the winner, and to which all contribute. 

Gaming is an agreement between two or 
more to risk money on a contest or chance of 
any kind, where one must be loser and the 
other gainer. 5 Sneed, 507. 

In general, the words “gaming ” and “gambling, ” 
in statutes, are similar in meaning, and either one 
comprehends the idea that, by a bet, by chance, by 
some exercise of skill, or by the transpiring of 


530 


GAOL 


some event unknown until it occurs, something of 
value is, as the conclusion of premises agreed, to 
be transferred from a loser to a winner, without 
which latter element there is no gaming or gam- 
bling. Bish. St. Crimes, § 858. 

“Gaming” implies, when used as describing a 
condition, an element of illegality; and, when 
people are said to be “gaming,” this generally 
supposes that the “games” have been games in 
which money comes to the victor or his backers. 
When the terms “game” or “gaming” are used in 
statutes, it is almost always in connection with 
words giving them the latter sense, and in such 
case itis only by averring and proving the differ- 
entia that the prosecution can be sustained. But 
when “gaming” is spoken of in a statute as indicta- 
ble, it is to be regarded as convertible with “gam- 
bling.” 2% Whart. Crim. Law, § 1465). 

“Gaming” is properly the act or engagement of 
the players. If by-standers or other third persons 
put up a stake or wager among themselves, to go 
to one or the other according to the result of the 
game, this is more correctly termed “batting.” 


GAMING CONTRACTS. See WaarEr. 


GAMING-HOUSES. In criminal law. 
Honses in which gambling is carried on as 
the business of the occupants, and which are 
frequented by persons forthat purpose. They 
are nuisances, in the eyes of the law, being 
detrimental to the public, as they promote 
cheating and other corrupt practices. 1 
Russ. Crimes, 299; liose. Crim, Ey. 663; 3 
Denio, 101. 


GANANCIAL PROPERTY. In Span- 
ish law. A species of community in prop- 
erty enjoyed by husband and wife, the prop- 
erly being divisible between them equally on 
a dissolution of the marriage. 1 Burge, 
Confl. Law, 418. See 18 Tex. 634; 22 Mo. 
254. 


GANAWCIAS. In Spanish law. Gains 
or profits resulting from the employment of 
property held by husband and wife in com- 
mon, White, New Kecop. b. 1, tit. 7, c. 5. 


GANG-WEEE. The time when the 


| bounds of the parish are Justrated or gone 


over by the parish officers,—rogation week 
Ene. Lond. 


GANGIATORI. Officers in ancient 
times whose business if was to examine 
weights and measures. Skene. 


GANTELOPE, (pronounced “gaunt- 
lett.”} A military punishment, in which the 
criminal running between the ranks receives 
tlash from each man. Ene. Lond. This was 
called “running the gauntlett.” 


GAOL, A prison for temporary confine. 
ment; a jail; a place for the confinement of 
offenders against the law. 


GAOL 


There is said to be a distinction between “gaol” 
and “prison,” the former being a place for tempo- 
tary or provisional confinement, or for the punish- 
ment of the lighter offenses and misdemeanors, 
while the latter is a place for permanent or long- 
continued confinement, or for the punishment of 
graver crimes. In modern usage, this distinction 
is commonly taken betiveen the words “gaol” and 
“penitentiary,” (or state's prison,) but the name 
“prison” is indiscriminately applied to either, 


GAOL DELIVERY. In criminal law. 
The delivery or clearing of a gacl of the pris- 
oners confined therein, by trying them. A 
cominission of general gaol delivery is one 
of the four commissions under which the 
judges in England sit at the assizes; and it 
empowers thein to try and deliver every pris- 
oner who shall be in the gaol, (that is, cither 
in actual custody, or out on bail,) when the 
judges arrive at the circuit town, 4 Chit. 
Bl. 270, and notes; 4 Steph. Comm. 833; 1 
Chit. Crim. Law, 145, 146. 


GAOL LIBERTIES, GAOL LIMITS. 
A district around a gaol, defined by limits, 
within which prisoners are allowed to go at 
large on giving security toreturn. It is con- 
sidered a part of the gaol. 


GAOLER. The master or keeper of a 
prison; one who has the custody of a place 
where prisoners are confined. 


GARANDIA, or GARANTIA. 
ranty. Spelman. 


GARANTIE. In French law. This 
word corresponds to warranty or covenants 
for title in English law. In the case of a 
sale this garantie extends to two things: (1) 
Peaceful possession of the thing sold; and 
(2) absence of undisclosed defects, (défawts 
cach’s.) Brown. 


GARATHINX. In old Lombardie law. 
A gift; a free or absolute gift; a gift of the 
whole of athing. Spelman. 


GARAUNTOR. L. Fr. Inold English 
law. A warrantor of land; a vouchee; one 
bound by a warranty to defend the title and 
seisin of his alienee, or, on default thereof, 
and yn eviction of the tenant, to give him 
other lands of equal value. Britt. c. 75. 


GARBA. Inold Englishlaw. A bundle 
orsheaf. Blade in garbis, corn or grain in 
sheaves. Keg. Orig. 96; Bract. fol. 209. 


GARBA SAGITTARUM, A sheaf of 
arrows, containing twenty-four, Otherwise 
called “sehajfa sayittarum.” Skene, 

GARBALES DECIMZ:. In Seotch law. 
Tithes of corn, (grain.) Bell. 


A war- 


531 


Nn 
ee eee ee 


GARNISHMENT 


GARBLE, In English statutes. Tosort 
or cull out the good from the bad in spices, 
drugs, ete. Cowell. 


GARBLER OF SPICES. An ancient 
officer in the city of London, who might enter 
into any shop, warehouse, ete., to view and 
seurch drugs and spices, and garble and make 
clean the same, or see that itbedone. Mozley 
& Whitley. 


GARCIO STOLAS. Groom of the stole. 


GARCIONES. Servants who follow a 
camp. Wals. 242. 


GARD, or GARDE. Wardship; care; 
custody; also the ward of a city, 


GARDEIN. A keeper; a guardian. 


GARDEN. <Asmall piece of land, appro- 
priated to the cultivation of herbs, fruits, 
flowers, or vegetables. 


GARDIA. Custody; wardship. 


GARDIANUS. InoldEnglishlaw. A 
guardian, defender, or protector. In feudal 


law, gardio. Spelman. 
A warden. Gardianus ecclesia, a church- 
warden. Gardianus quingue portuum, 


warden of the Cinque Ports. Spelman, 


GARDINUM. Inold English law. A 
garden. Rog. Orig. 1d, 2. 


GAREWE. UL. Fr. A warren; a privi- 
leged place for keeping animals. 


GARNESTURA. In old English law. 
Victuals, arms, and other implements of war, 
necessary for the defense of a town or castle, 
Mat. Par. 1250. 


GARNISH, mn. In Englishlaw. Money 
paid by a prisoner to his fellow-prisoners on 
his entrance inte prison. 


GARNISH, ». To warn or summon. 
To issue process of garnishment against a 
person. 


GARNISHEE. One garnished; a per- 
son against whom process of garnishment is 
issued; one who has money or property in 
his possession belonging toa defendant, or 
who owes the defendant a debt, which mon- 
ey, property, or debt is attached in his hands, 
with notice to him not to deliver or pay it 
over until the resuit of the suit be ascertained, 


GARNISHMENT. In the process of at- 
tachment. A warning to a person in whose 
hands the effects of another are attached not 


GARNISHMENT 


to pay the money or deliver the property of | 
the defendant in his hands to him, but to ap- 
pear and unswer the plaintifi’s suit. Drake, 
Attachm. § 451. - 

A. “garnishment,” as the word is employed 
in this Code, is process to reach and subject 
money or effects of a-defendant in attach- 
ment, or in 4 judgment or deeree, or in a 
pending suit commenced in the ordinary 
form, in the possession or under the control 
of a third person, or debts owing such de- 
fendant, or liabilities to him on contracts for 
the delivery of personal property, or on con- 
tracts for the payment of money which may 
be discharged by the delivery of personal 
property, or on a contract payable in person- 
al property; and such third person is called 
the “garnishee.” Code Ala. 1886, § 2994. 

Garnishment isa proceeding to apply the debt 
due by a third person to a judgment defendant, to 
the extinguishment of that judgment, or to appro- 
priate effects belonging to a defendant, in the 
hunds of a third person, to its payment. 4Ga. 393, 

Also a warning to any one for his appear- 
ance, in a cause in which he is nota party, 
for the information of the court and expiain- 
ing acause. Covell. 


GARNISTURA. In old English law. 
Garniture; whatever is necessary for the for- 
tification of a city or cump, or for the orna- 
ment ofa thing. 8 Rymer, 328; Du Cange; 
Cowell; Blount. 


GARSUMME. In old Englishlaw. An 
amerciament or fine. Cowell. 


GARTER. A string or ribbon by which 
the stocking is held upon theleg. The mark 
of the highest order of English knighthood, | 
ranking next after the nobility. ‘This milita- 
ry order of knighthood is said to have been first 
instituted by Richard L, at the siege of Acre, 
where he cause! twenty-six Knights who 
firmly stood by him to wear thongs of blue 
leather about their legs. It is also said to 
have been perfected by Edward III., and to 
have received some alterations, which were 
afterwards laid aside, from Edward VI. The 
badge of the order is the image of St. George, 
ealled the “George,” and the mottois “ Honi 
soit qui mai y pense.” Whiarton. 


GARTH. In English law. A yard; a 
little close or homestead in the north of Eng- 
land. Cowell; Blount. 

A dam or wear in a river, for the catching 
of fish. 


GARYTOUR. Inold Scotchlaw. Ward- 
ar. =n Rites Crim. Tr. pt. 1, p. 8. H 


532 


GAVELING MEN 


GASTALDUS. <A temporary governor 


ofthe country. Blount. A bailiff or stew- 
ard. Spelman. 
GASTEL. L. Fr. Wastel; wastel bread; 


the finest sort of wheat bread. Britt. ec. 30; 
Kkelham. 


GASTINE. L. Fr. Waste or unculti- 
vated ground. Lritt. c. 57. 


GAUDIES. A term used in the English 
universities to denota double commons. 


GAUGE, The measure of width of a rail- 
way, fixed, with some exceptions, at 4 feet 
8% inches in Great Britain and America, and 
5 feet 3 inches in Ireland. 


GAUGEATOR. 


GAUGER. A surveying officer underthe 
customs, excise, and internal revenue laws, 
appointed to examine all tuns, pipes, hogs- 
heads, barrels and tierces of wine, oil, and 
other liquids, and to give them a mark of 
allowance, as containing lawful measure. 
There are also private gaugers in large sea- 
port towns, who are licensed by government 
to perform the same duties. Rapal. & L. 


GAUGETUM. A gauge or gauging; a 
measure of the contents of any vessel. 


A gauger. Lowell. 


GAVEL. In English law. Custom; 
tribute; toli; yearly rent; payment of reve- 


' nue; of which there were anciently several 
| sorts; as gavelcorn, gavel-malt, oat-gavel, 


gavel-jodder, ete, Termes dela Ley; Cowell; 
Co. Litt. 1l42ze. 


GAVELBRED. In English law. Rent 


| reserved in bread, corn, or provision; rent 


payable in kind. Cowell. 


GAVELCESTER. 
of rent-ale. Cowell. 


GAVELET. Anancient and special kind 
of cessavit, used in Kent and London for the 
recovery of rent. Obsolete. The statute of 
gavelet is 10 Edw. Il. 2 Reeve, Eng, Law, 
c. 12, p. 298. 


A certain measure 


GAVELGSHLD. That which yields 
annual profit or toll. The tribute or toll 
itself. Cowell; Du Cange. 


GAVELHERTE. A service of plow- 
ing performed by a customary tenant. 
Cowell; Du Cange. 


GAVELING MEN. Tenants who paid 
a reserved rent, besidez some customary 
duties to be done by them. Cowell. 


GAVELKIND 


GAVELKIND. A species of socage ten- 
ure common in Kent, in England, where the 
lands deseend to all the sons, or heirs of the 
nearest desree, together; may be disposed of 
by will; do not escheat for felony; may be 
aliened by the heir at the age of fifteen; and 


dower and curtesy is given of half the land. | 


stim. Law Gloss. 


GAVELLER. An officer of the English 
crown having the general management of the 
mines, pits, and quarries in the Forest of 
Dean and Wundred of St. Briaval’s, subject, 
in some respects, fo the control of the com- 
missioners of woods and forests. He grants 
gales to free miners in their proper order, 
accepts surrenders of gales, and keeps the 
registers required by the acts. There is a 
deputy-gayeller, who appears to exercise most 
of the gaveller’s functions. Sweet. 


GAVEL-MAW. Inold Englishlaw. A 
tenant liable to the payment of gavel or trib- 
ute. Somn. Gavelkind, 23. 


GAVELMED. A customary service of 
mowing meadow-iand or cutting grass, (con- 
suctwio feleandt.) Blount. 


GAVELREP. InoldEnglishlaw. LBed- 
rea, or bidreap; the duty of reuping at the 
bid or command of the lord. Somn. Gavel- 
kin’, 19, 21; Cowell. 


GAVELWEREK. A customary service, 
either manuopera, by the person of the ten- 
unt, or car7opera, by lis carts or carriages. 
Blornt; Somn. Gavelkind, 24; Du Cange. 


GAZETTE. The official publication of 
the English government, also called the 
“London Gazette.” It is evidence of acts of 
stats, and of everything done by the queen 
in hex political capacity. Orders of adjudica- 
tion in bankruptey are required to be pub- 
lished therein; and the production of a copy 
oi the “Gazette,” containing a copy of the 
order of adjudication, is evidence of the fact. 
Mozy & Whitley. 


GEBOCCED. An Anglo-Saxon term, 
meaning “conveyed.” 
GEBOCIAN. InSaxonlaw. Toconvey; 


to transfer boe land, (book-land or land held 
by charter.) The grantor was said to gebo- 
cias thealienee. See 1 Reeve, Hug. Law, 10. 


GEBURSCRIPT. Neighvorbecd or ad- 
joining district. Cowell. 


GEBURUS. In old English law. A 
country neighbor; an inhabibant of the same 
geburscript, or village. Cowell. 


583 


GENERAL 


GEDLD. In5axonlaw. Money ortribute. 
Amulet, compensation, value, price. Angeld 
was tho single value of a thing; fawégeldd, 
double value, ete. So, weregeld was the 
value of a man slain; o7fgeid, that of a 
beast. Brown. 


GELDABILIS, 
Taxable; geldable. 


GELDABLE. Liable to pay geld; Mable 
to be taxed. Kelham. 


GELDING. <A horse that has been cas- 

| trated, and which is thus distinguished from 

the horse in his natural and unaltered con- 

| dition. A “ridgling” (a half-castrated horse) 

| is not a gelling, but a horse, within the de- 

nowination of animals in the statutes. 4 
Tex, App. 219. 


GEMMA, Lat, In the civil law. A 
gem; a precious stone. Gems were dis- 
tinguished by their transparency; such as 
emeralds, chrysolites, amethysts. Dig. 34, 
ay, 1. ve 


GEMOT. In Saxon law. A meeting or 
moot; a convention; a public assemblage, 
These were of several sorts, such as the 
witena-gemot, or mesting of the wise men; 
the fole-gemot, or general assembly of the 
people; the shire-gemot, or county court; the 
burg-gemot, or borough court; the hundred. 
gemot, or hundred court; the Aali-gemot, or 
court-baron; the Aal-mute, a convention of 
cibizeus in their public hall; the kely-mete, 
or holy court; the swetn-gemote, or forest 
court; the ward-mote, or ward court, Whar- 
ton; Cunningham. 


In old English law. 


GHNEALOGY. An account or history 
of the descent of a person er family from an 
ancestor; enumeration of ancestors and their 
children in the natural order of succession, 
Webst. 


GENEARCH. Tie head of a family, 


GHUMEATH. In Saxon law. <A villein, 
or agricultural tenant, (silianus viliieus:) a 
hind or farmer, (firmarius rusticus.) Spol- 
man. 


GENER. Lat. In the civil iaw. A 
son-in-law; & daughter’s husband. (fidie 
vir.) Dig. 38, 10, 4, 6. 


GENERAL. Pertaining to, or designat- 
ing, the venus or class, as distinguished from 
that which characterizes the species or indi- 
vidual. Universal, not particularized; as 
opposed to special. Principal or central; as 
| opposed to local. Open or available to all, 


GENERAL 


as opposed to select. Obtaining commonly, 
or recognized universally; as opposed to par- 
ticular. Universal or unbounded; as op- 
posed tolimited. Comprehending the whole, 
or directed to the whole; as distinguished 
from anything applying to or designed for 4 
portion only. Pa 

As a noun, the word is the title of a prin- 
cipal officer in the army, usually one who 
commands a whole army, division, corps, or 
brigade. In the United States army, the 
rank of “general” is the highest possible, 
next to the commander in chief, and is only 
occasionally created. The oljicers next in 
rank are leulenant general, major general, 
and brigadier general. 


GENERAL AGEMT. A person who fs 
authorized by his principal to execute all 
deeds, sign all contracts, or purchase all 
goods, required in a particular trade, busi- 
ness, or employment. Story, Ag. § 17. 

In another sense, a person who has a gen- 
eral authority in regard to a particular object 
orthing. Id. § 18. 

A general agent is one appointed to act in the 
affairs of his principal generally; a specialagent is 
one appointed to act concerning some particular 
object. 7 Ala. S00, S04, 


GENERAL APPEARANCE. An un- 
qualified or unrestricted submission to the 
jurisdiction of thecourt. See APPEARANCE. 


GENERAL ASSEMBLY. A name 
given in some of the United States to tle sen- 
ate and house of representatives, which com- 
pose the leyislative body. 


GENERAL ASSIGNMENT. An as- 
signment made for the benefit of ald the as- 
signor’s creditors, instead of a few only; or 
one which transfers the whole of his estate to 
the assigaee, instead of a part only. 


GENERAL AVERAGE. In commer- 
cial law. A contribution made by the pro- 
prietors in general of a ship or cargo, towards 
the !oas sustained by any individual of their 
number, whose property has been voluntarily 
sacriliced for the common safety; as where, 
in a storm, jettison is made of any goods, or 
sails or masts are cut away lenunde navts 
caus?, {to lighten the vessel.) 2 Steph. 
Comm. 179. 


The term expresses that contribution to a loss 
or expense voluntarily incurred for the preserva- 
tion of the whole, iu which all who are concerned 
in ship, freight, and cargo are to bear an equal 
part, proporiiouable to their respective interests. 
And for tle iogs incurred by this contribution, 


534 


en 


GENERAL DEPOSIT 


however small in amount, the respective owners 
are to be indemnified by theirinsurers. 4 Mass, 
548. 

GENERAL CHALLENGE. A species 
of challenge fur cause, being an objection to 
a particular juror, to the effect that the juror 
is disqualified froin servinginany case, Pen. 
Code Cal. § 1071. 


GENERAL CHARACTER. See Cyar- 
AOTER. 


GENERAL CHARGE, A charge or 
instruction by the court to the jury upon the 
case as a whole, or upon its general features 
or characteristics. 


GENERAL COUNCIL. (1) A council 
consisting of members of the Roman Catho- 
lic Church from most parts of the world, but 
not from every part, as an ecumenical coun- 
cil. (2) One of the names of the English 
parliament. 


GENERAL COVENANT. One which 
relates to lands generally, and places the cove- 
nantee in the position of a specialty creditor. 
Brown. 


GENERAL CREDIT. Thecharacter of 
a witness as one generally worthy of credit. 
According to Bouvier, there is a distinction 
between this and “particular credit,” which 
may be affected by proof of particular facta 
relating to the particular action. 


GENERAL CUSTOM. General customs 
are such as prevail throughout a country and 
become the law of that country, und their 
existence is to be determined by the court. 
Particular customs are such as prevail in 
some county, city, town, parish, or place; 
their existence is to be determined by a jury 
upon proof. 23 Me. 95, 


GENERAL DAMAGES, In pleading 
and practice. Such damages as necessarily 
result from the injury complained of, and 
which may be shown underthe ad damnum, 
or general allegation of damages at the end 
of the declaration. 2 Greenl. Ev. § 254. 


GHNERAL DEMURRER. In pleading. 
A demurrer framed in general terms, with- 
out showing specifically the natnre of the 
objection, and which is usually resorted to 
where the objection is to matter of substance. 
Steph. Pl 140-142; 1 Chit. Pl. 663. Sea 
DeEMURRER. 


GEHNERAL DHPOSIT. A general de 
posit is where the money deposited is not it- 
self to be returned, but an equivalent in 


GENERAL ELECTION 


money (that is, a like sum] is to be returned. 
It is equivalent to a lean, and the money 
deposited becomes the property of the deposi- 
tary. 43 Ala. 188. 


GENERAL ELECTION. 1. One at 
which the officers to be elected are such as 
belong to the general governinent,—that is, 
the general and central political organization 
of the whole state; as distinguished from an 
election of officers for a particular locality 
only. 

2. One held for the selection of an officer aft- 
er the expiration of the full term ofthe former 
ofiicer; thus distinguished from a special 
election, which is one held to supply a vacancy 
in oiliee occurring before the expiration of 
the full term for which the incuinbent was 
elected. 652 Cal. 164. 


GENERAL EXECUTOR. One whiose 
power is not limited either territorially or as 
to the duration or subject of his trust. 


GHNERAL FIELD. Several distinct 
lots or pieces of Jand inclosed and fenced in 
a3 one common field. 14 Mass, 440. 


GENERAL FUND. This phrase, in 
New York, is a collective designation of all 
the assets of the state which furnish the 
means forthe support of government and for 
defraying the diseretionary appropriations of 
the legislature. 27 Barb. 575, 588. 


GENERAL GAOL DELIVERY. 
In English law. At the assizes (g. v.) the 
judges sit by virtue of five several authori- 
ties, one of which is the commission of “gen- 
eral gaol delivery.” This empowers them to 
try and deliverance make. of every prisoner 
who shall be in the gaol when the judges ar- 
rive at ihe circuit town, whether an indict- 
ment has been preferred ab any previous as- 
sizeor not. 4 Bl. Comm. 270. 


GENERAL GUARDIAN. One who 
has the general care and control of the per- 
son aud estate of his ward. 


GENERAL IMPARLAWCH, In plead- 
ing. One granted upon a prayer in which 
the defendant reserves to himself no excep- 
tions. 


GENERAL INCLOSURE ACT. The 
statute 41 Geo. III. ¢«. 109, which consoli- 
dates a number of regulatious as to the in- 
closure of commen fields and waste lands. 


GENERAL INTENT. <An intention, 
purpose, or design, either without specifie 


535 


GENERAL LAW 


plan or particular object, or without refer- 
ence lo such plan or object, 


GENERAL INTEREST. In speaking 
of matters of public and general interest, the 
terms “public” and “general” are sometimes 
used as synonyms. But in regard to the ad- 
missibility of hearsay evidence, a distinction 
has been taken between them, the term 
“public” being strictly applied te that which 
concerns every member of the state, and tha 
term “general” being confined to a lesser, 
though still a considerable, portion of the 
community. Tayl. Ey. § 609. 


GENERAL ISSUE, In pleading. A 
plea which traverses and denies, briefly and 
in general and summary terms, the whole 
declaration, indiebinent, or complaint, with- 
out tendering new or special matter. See 
Steph. Pl. 155. Examples of the general is- 
sueare “not guilty,” “non assumpsit,” “nil 
debet,” “gon est factume” 


GENERAL JURISDICTION, Suchas 
extends to all controversies that may be 
brought before a court within the legal bounds 
of rights and remedies; as opposed to special 
or démitted jurisdiction, which covers only a 
particular class of cases, or eases where the 
amount in controversy is below a prescribed 
sum, or which is subject to specilic excep- 
lions. 

The terms “general” and “special,” applied to 
jurisdiction, indicate the difference between a le- 
gal authority extending to the whole of a particu- 
lar subject and one lunited to a part; and, wheou 
applied to the terms of court, the occasion upon 


which these powers cau bs respectively exercised. 
1 N. ¥, 232. 


GENERAL LAND-OFFICE. 
United States, one of the bureaus of tho in 
terior department, which has charge of the 
survey, sale, granting of patents, and otier 
matters relating to the public lands. 


GENERAL LAW. A general law, as 
contradistinguished from one that is special 
or local, is a law that embraces a class of sub- 
jects or places, and does not omit any subject 
or place naturally belonging to such class. 
40°N). J. Law, 

A law, framed in general terms, restricted 
to no lucality, and operating equally upon all 
of a group of objects, which, having regard 
to the purposes cf the legislativn, are dis- 
tinguished by characteristics sufficiently 
marked and important to make them a class 
by themselves, is not a special or local law, 
but a general law. 40N. J. Law, 123. 


In tha 


GENERAL LEGACY 


GENERAL LEGACY. A pecuniary 
legacy, payable out of the general assets of 
a testator. 2 Bl. Comm. 512; Ward, Leg. 
1, 16. 


GENERAL LIEN. A right to detain a 
ehaitel, ete., until payment be made, nob 
only ofany debt due in respect of the partic- 
ular chattel, but of any balance that may be 
due on general account in the same line of 
business. A general lien, being against the 
ordinary rule of law, depends entirely upon 
contract, express or implied, from the special 
usaye of dealing between the parties. Whar- 
ton. 


GENERAL MALICE. General malice 
is wickedness, a disposition todo wrong, a 
“black and diubolical heart, regardless of so- 
cial duty and fatally bent on mischief.” 11 
Tred. 261. 


GENERAL MEETING. A meeting of 
al] the stockholders of a corporation, all the 
creditors of a bankrupt, ete. 


GENERAL MONITION. In civil law 
and admiralty practice. A nivnition or suin- 
mons to all parties in interest to appear and 
slow cause against the decree prayed for. 


GENERAL OCCUPANT. Atcommon 
law where a man was tenant pur auter vie, 
or had an estate granted to himself only ( with- 
out mentioning his heirs) for the life of an- 
other man, and died without alienation during 
the life of cestwi que cie, or him by whose 
life it was holden, he that could frst enter on 
the land might lawfully retain the possession, 
so long as cestud que vie lived, by right of oc- 
cupancy, and was hence termed a “general” 
or common “occupant.” 1 Steph. Comm. 
415. 


GENERAL ORDERS. Orders or rules 
of court, promulgated for the guidance of 
practitioners and the regulation of procedure 
in general, or in some general branch of its 
jurisdiction; as opposed to a rule or an order 
made in an individual case; the rules of court. 


GENERAL OWNER, The general 
owner of a thing is he who has the primary 
or residuary tille to it; as distinguished from 
a spectad owner, Who has a special interest in 
the saine thing, amounting to a qualified 
ownership, auch, for example, as a buailee’s 
Hien. 


GENERAL PARTNERSHIP. A part- 
nership in which the parties carry on all their 
trade and business, whatever it may be, for 


5386 GENERAL SPECIAL IMPARLANCE 


the joint benefit and profit of all the parties 
concerned, whether the capital stuck be lim- 
ited or not, or the contributions thereto be 
equal or unequal. Story, Partin. § 74. 


GENERAL PROPERTY. The right 
and property in a thing enjoyed by the general 
owner, {g. 0.) 


GENERAL RESTRAINT OF TRADE, 
One which forbids the person to employ his 
talents, industry, or capital in any undertak- 
ing within the limits of the state or country. 
9 liow. Pr. 337. 


GENERAL RETAINER. A general 
relainer of an attorney or solicilor “merely 
gives a right to expect professional service 
when requested, but none which is not re- 
quested. It binds the person retained not to 
take a fee from another against his retainer, 
but to do nothing except what he is asked to 
do, and for this he is to be distinctly paid.” 
6 R. I. 206. 


GENERAL RETURN-DAY. The day 
for the general return of all writs of sum- 
mons, subpoena, etc., running toa particular 
term of the court. 


GENERAL RULES. General orstand- 
ing orders of a court, in relation to practice, 
ete. See GENERAL ORDERS. 


GENERAL SESSIONS. A court of 
record, in England, held by two or more jus- 


tices of the peace, for the execution of the 


authority given them by the commission of 
the peace and certain statutes. General ses- 
sions held at certain times in the four qnar- 
ters of the year pursuant to St.2 Hen. V.are 
properly called “quarter sessions,” (q. %.,) 
but intermediate general sessions muy also be 
held. Sweet. 


GENERAL SHIP. Where a ship is not 
chartered wholly to one person, but the owner 
offers her generally to carry the guods of all 
comers, or where, if chartered to one person, 
he offers her to several subfreighters for the 
conveyance of their goods, she is called a 
“general” ship, as opposed to a “chartered” 
one. Brown. 

A vessel in which the master or owners engage 
separately with a number of persons unconnected 


with each other to convey their respective goods. 
to the place of the ship’s destination. 6 Cow. 173, 


GEWERAL SPECIAL IMPAR- 
LANCE, An imparlance (g. 0.) granted 
upon a prayer in which the defendant re- 
serves to himself “all advantages and excep- 
lions Whutsvever.” 2 Chit. Pl 403. 


i 
! 
| 


GENERAL STATUTE 


GENERAL STATUTE. A statute re- 
lating to the whole community, or concern- 
ing all persons generally, as distinguished 
from a private or special statute, 4 Coke, 
75a; 1 Bl. Comm. 85, 86. 


GENERAL TAIL. Anestate tail where 
one parent only is specified, whence tle issue 
must be derived, as to A. and the heirs of his 
body. 


GHNERAL TENANCY. A _ tenancy 
which is not fixed and made certain in point 
of duration by the agreement of the parties. 
22 Ind. 122. 


GENERAL TERM. A phrase used in 
some jurisdietions to denote the ordinary scs- 
sion of a court, for the trial and determina- 
tion of causes, as distinguisled froma special 
term, for the hearing of motions or argu- 
ments or the despatch of various kinds of 
forinal business, or the trial of a special list 
or class of cases. 
of the court in bene. 


GENERAL TRAVERSE. One preced- 
ed by a g-neral inducement, and denying in 
general terms all that is last before alleged 
on the opposite side, instead of pursuing the 
words of the allegations which it denies. 
Gould, Pl. vil. 5. 


GENERAL USAGE. One which pre- 
vails generally throughout the country, or is 
followed generally by a given professivn or 
trade, and is not local in its nature or ob- 
servance, 


GENERAL VERDICT. A verdict 
whereby the jury find either for the plaintiff 
or for the defendant in general terms; the or- 
dinary form of a verdict; distinguished from 
a special verdict, (q. 0.) 


GENERAL WARRANT. A_ process 
which formerly issued from the state secre- 
tary’s office in England to take up (without 


naming any persons) the author, printer, and | 


publisher of such obscene and seilitious libels 
as were specilied in it. It was declared ille- 
gal and void for uncertainty by a vote of the 
house of commons on the 22d April, 1766. 
Wharton. 


GENERAL WARRANTY. The name 
of a covenant of warranty inserted in deeds, 
by which the grantor binds himself, his heirs, 


_ ete., to “warrant and forever defend” to the 


grantee, his heirs, etc., the title thereby con- 
veyed, against the lawful claims of all per- 
sons whatsoever. Where the warranty is 
only against the claims of persons claiming 


537 


Or it may denote a sitting 


GENERATIO 


“by, through, or under” the grantor or his 
heirs, it is called a “special warranty.” 


GENERALE. The usual commons in a 
religious house, distinguished from pietan- 
tiw, which on extraordinary occasions were 
allowed beyond the commons. Cowell. 


Generale dictum generaliter est inter- 
pretandum. A general expression is to be 
interpreted generally. 8 Coke, 1l6a. 


Generale nihil certum implicat. <A 
general expression implies nothing certuine 
2 Coke, 346. A general recital in a dced has 
not the effect of an estoppel. Best, Ey. p. 
408, § 370. 


Generale tantum valet in gencratibus, 
quantum singulare in singulis. What is 
general is of as much foree among general 
things as what is particular is among things 
particular, 11 Coke, 59d. 


Generalia precedunt, specialia se-- 


quuntur. Things general precede, things 
special follow. Reg. Brey.; Branch, Princ. 


Generalia specialibus non derogant. 
Jenk. Cent. 120, cited L. R. 4 Exch. 226. 
General words do not derogate from special. 


Generalia s~°* preeponenda singulari- 
bus. Branch, irinc. General things are 
to precede particular things. 


Generalia verba sunt generaliter in- 
telligenda. General words are to be under- 
stood generally, or in a general sense. 3 
Inst. 76; Broom, Max. 647. 


Generalibus specialia derogant. Spe- 
cial things take from generals. Halk. Lat, 
Max. 51. 


Generalis clausula non porrigitur ad 
ea que antea specialiter sunt compre- 
hensa. <A general clause dues not extend 
to those things which are previously provid- 
ed for specially. 8 Coke, 154b. Therefore, 
where a deed at the first contains special 
words, and afterwards concludes in general 
words, both words, as well general as special, 
shall stand. 


Generalis regula generaliter est intel- 
ligenda. A general rule is to be understood 
generally. 6 Coke, 65. 


GENERALS OF ORDERS. Chiefs of 
the several orders of monks, friars, and other 
relizious societies. 


GENGRATIO. The issue oroffspring of ti 


| a mother-monastery. Cowell. 


GENEROSA 538 GEST 
GEMNEROSA. Gentlewoman. Cowell; In logic, it is the first of the universal ideas, 
2 Inst. 668. and is when the idea is so common that it ex- 


GENZROSI FILIUS. The son of a 
gentleman. Generally abbreviated “gen. 727i.” 


GENEROSUS. Gentleman; a gentleman, 
Spelman. ’ 


GENICULUM. A degree of consanguin- 
ity. Spelman. 


GENS. In Romantaw. <Atribeor clan; 
a group of families, connected by common 
descent and bearing the same name, being 
all free-born and of free ancestors, and in 
possession of full civic rights. 


GENTES. People. Contra omnes gentes, 
against all people. LBract. fol. 376. Words 
used in the clause of warranty in old deeds. 


GENTILES. In Roman law. 
bers of a gens or common tribe. 


GENTLEMAN, In English law. 
person of superior birth, 

Under the denomination of “gentlemen” are 
comprised all above yeoman; whereby noblemen 
are truly called “gentlemen,” Smith de Rep. Ang. 
lib. 1, ec. 20, SL. 

A “gentleman” is defined to be one who, without 
any title, bears a coat of arms, or whose ancestors 
have been freemen; and, by the coat that a gentle- 
man giveth, he ia known to be, or not to be, de- 
scended from those of his name that lived many 
hundred yearssince. Jacob, 


GENTLEMAN USHER. One who holds 
a post at court to usher others to the presence, 
ete. 


GENTLEWOMAN. A woman of birth 


The mem- 


A 


above the common, or equal to that of a gen- | 


tleman; an addition of a woman’s state or 
degree, 


GENTOO LAW, 


GENUIWE. This term, when used with 
reference toa note, imports nothing in regard 
to the collectibility of the note, or in regard 
to its legal eilect or operation, other than 
that the note is not false, fictitious, simulated, 
spurious, counterieit, or, in short, that the 
apparent maker did make and deliver the note 
oliered forsale. 37 N. Y. 487. 


GENUS. In the civil law. <A general 
class or division, comprising several species. 
In toto jure genert per speciem derogatur, et 
tllud potissimum habetur quod ad speciem 
directwm est, throughout the law, the species 
takes from the genus, and that is most par- 
ticularly regarded which refers to the species. 
Dig. 50, 17, 80. 

A man’s lineage, or direct descendants. 


See Hinpv Law. 


tends to other ideas which are also universal; 
é. g., incorpereal hereditament is genws with 
Tespect to a rent, which isspeeies. Woolley, 
Introd. Log. 45; 1 Mill, Log. 133. 


GEOPONICS. The science of cultivating 
the ground; agriculture. 


GEORGE-NOBLE. A gold coin, value 


6s. 8d. 
GHRECHTSBODE, In old New York 
law. A court messenger or constable. 


O'Callaghan, New Neth. 322. 


GEREFA. In Saxon law. Greve, reve, 
or reeve; a ministerial officer of high antiq- 
uity in England; answering to the yrave or 
graf (grajio) of the early continental nations. 
The term was applied to various grades of 
otlicers, from the seyre-gerefa, shire-yrefe, or 
shire-reve, who had charge of the county, 
(and whose title and office have been perpet- 
uated in the modern “sheriff,”) down to 
the tun-gerefa, or ftown-reeve, and lower. 
Burrill, 


GERENS. Bearing. Gerens datum, 
bearing date, 11d. Raym. 3386; Hob. 19. 
GERMAN. Whole, full, or own, in re- 


spect to relationship or descent. Drothers- 
german, as opposed to half-brothers, are 
those who lave both the same father and 
mother. Cousins-german are “first” cous- 
ins; that is, children of brothors or sisters. 


GERMANUS. Descended of the sume 
stock, or from the same couple of ancestors; 
of the whole or full blood. Muackeld. Rom. 
Law, § 145. 


GERMEN TERRA. A sprout of the 
earth. A young tree, so called. 


GERONTOCOMI. In the civil law. 
Officers appointed to manage hospitals for 
the aged poor. 


GBRONTOCOMIUM. In the civil 


law. An institution or hospital for taking 
eare of the old. Cod. 1, 3, 46, 1; Calvin. 


GERSUMARIUS. Finable; Hable to 
be amerced at the discretion of the lord of a 
manor. Cowell, 


GERSUMBE. In old English law. FEx- 
pense; reward; compensation; wealth. Itis 
also used for a fine or compensation for an 
offense. 2 Mon. Angl. 973. 


GEST. In Saxon law. A guest. A 
name given to a stranger on the second night 


GESTATION, UTERO-GESTATION 539 


of his entertainment in another’s house. 
Twa-night gest. 


GESTATION, UTERO-GESTATION. 
In medica] jurisprudence. The time during 
which a female, who has conceived, carries 
the embryo or fetus in her uterus. 


GESTIO, 
or conduct. 

Management or transaction. Negotiorum 
gestio, the doing of another’s business; an 
interference in the affairs of another in his 
absences, from benevolence or friendship, and 
without authority. Dig. 3, 5, 45; Id. 46, 3, 
12, 4; 2 Kent, Comm. 616, note. 


In the civil law. Behavior 


GESTIO PRO HAIREDE. Behavior as 
heir. This expression was used in the Ro- 
man law, and adopted in the civil law and 
Scotch law, to denote conduct on the part of 
a person appointed heir to a deceased person, 
or otherwise enLitled tosneceed as heir, which 
indicates an intention to enter upon the in- 
heritance, and to hold himself out as heir to 
creditors of the deceased; as by receiving the 
rents due to the deceased, or by taking pos- 
session of his title-deeds, ete. Such acts will 
render the heir liable to the debts of his an- 
eestor. Mozley & Whitley. 


GESTOR. In the civil law. One who 
acts for another, or trausacts another’s bus- 
iness. Caivin. 


GESTU ET FAMA. An ancient and 
obsolete writ resorted to when a person’s 
good behavior was impeached. Lamb. Kir. 
], 4, c. 14. 


GESTUM, Lat. In Roman law. A 
deed or act; a thing done. Some writers af- 
fected to make a distinetion between “ges- 
tum” and “factum.” Lut the best authori- 
ties pronounced this subtile and indefensible. 
Dig. 50, 16, 53. 


GEHVILLOURIS. In old Scotch law. 
GQaolers. 1 Pite. Crim. Tr. pt. 2, p. 234. 


GHEWINEDA. In Saxon law. The an- 
cient convention of the people to decide a 
cause. 


GEWITHESSA. in Saxon and old En- 
glish law. The giving of evidence. 


GEWRITEH. In Saxon law. Deeds or 
charters; writings. 1 Reeve, Eng. Law, 10. 


GIBBET. A gallows; theposton which 
malefactors are hanged, er on which their 
bodies are exposed. It differs from a com- 


mon gallows, in that it consists of one per- | ligious gilds, and others. 


| “fraivia,” 


GILD 


pendienlar post, from the top of which pro- 
ceeds one arm, except it be a double gibbet, 
which is formed in the shape of the Koman 
capital T. Ene. Lond. 


GIFT. A voluntary conveyance of land, 
or transfer of goods, from one person to an- 
other, made gratuitously, and not upon any 
consideration of blood or money. 2 BL 
Comm. 410; 2 Steph. Comm. 102; 2 Kent, 
Comm. 437. 

A gift isa transfer of personal property, 
made voluntarily and without consideration. 
Civil Code Cal. § 1146. 

In popular language, a voluntary convey- 
ance or assignment is called a “deed of gift." 

“Gift” and “advancement” are sometimes 
used interchangeably as expressive of the 
saine operation. But, while anadvancement 
is always a gift, a gift is very frequently not 
an advancement. 38 Brewst. 314. 

In English law. A conveyance of lands 
in tail; a conveyance of an estate tail in 
which the operative words are “I give,” or 
“Thaye given.” 2 BI. Comm. 316; 1 Steph. 
Comm. 473. 


GIFT ENTERPRISE. <A scheme for 
the division or distribution of certain articles 
of property, to ba determined by chance, 
among those who have taken shares in the 
scheme. The phrase has attained such a 
notoriely as to justify a court in taking ju. 
dicial notice of what is meant and understood 
by it. 81 Ind. 17; 106 Mass. 422. 


GIFTA AQUZ. 
to a mill. 


The stream of water 
Mon, Angi. tom. 8. 


GIFTOMAN. In Swedish law. The 
right to dispose of a woman in marriage; or 
the person possessing such right,—her fath- 
er, if living, or, if he be dead, the mother. 


GILD. 
Spelman. 

A fine, mulet, or amerciament; a satisfac- 
tion or compensation for an injury. 

A lraternity, society, or company of per- 
sons combined together, under certain regu- 
lations, and with the king’s license, and so 
called because its expenses were defrayed by 
the contributions (geld, gitd) of its members. 
Spelman, In other words, a corporation; 
called, in Latin, “secéetas,” “collegium,” 
“Fraternitas,” “sodalitium,” 
“adunatio;” and, in foreign law, “gildonia.” 
Spelman. There were various kinds of these 
giids, a3 Inerchant or commercial gids, re- 
8 Turn. Anglo 


In Saxon law. A tax or tribute. 


GILD 


540 


GLADIUS 


Sax. 98; 8 Steph. Comm. 173, note u. See | be maintainable; the essential ground or ob- 


GILDA MERCATORIA. 

A friborg, or decennary; called, by the Sax- 
ons, “gyldscipes,” and its members, “ gi- 
danes” and “eongildones.” Spelman. 


GILD-HALL. See GUILDHALL. 


GILD-RENT. Certain payments to the 
crown from any gild or fraternity. 


GILDA MERCATORIA. A gild mer- 
chant, or merchant gild; a gild, corporation, 
or company of merchants. 10 Coke, 30. 


GIUDABELE. Inold Englishlaw. Tax- 
able, tributary, or contributory; liable to pay 
tax or tribute. Cowell; Bicunt. 


GILDO. In Saxon law. 
gild or decennary. Oftener spelled “eon- 
giido.” Du Cange; Spelman, 


GILL. A liquid measure, containing one- 
fourth of a pint. 


GILOUR. L. Fr. A chent or deceiver. 
Applied in Britton to those who sold false or 
spurious things for good, as pewter for sil- 
ver or laten for gold. Britt. c. 15. 


GIRANTE. <An Italian word, which 
signifies the drawer of a bill. It is derived 
from “girare,” to draw. 


GIRTH. In Saxon and old English law. 
A measure of length, equal to one yard, de- 
rived trom the girth or circumference of a 
man’s body. 

GIRTH AND SANCTUARY. In old 
Scotch law. An asylum given to murderers, 
where the murder was committed without 


any previous design, and in chaude mella, or 
heat of passion. Bell. 


GISEMENT, <Agistment; cattle taken 
in to graze at a certain price; also the money 
received for grazing cattle. 


GISER, L. Fr. To lic. Gist en le 
bouche, it lies in the mouth. Ze action bien 
gist, the action well lies. Gisant, lying. 

GISHTAKER. An agister; a person 
who takes cattle to graze. 


GISLE. A pledge.  Fredgiste, a pledge 
of peace. Gislebert, an illustrious pledge. 


GIST. Inpleading. The essential ground | 


or object of the action in point of law, with- 
out which there would be no cause of actiun, 
Gould, Pl. ¢. 4, § 12; 19 Vt. 102. 

The gist of an action is the cause for 
which an action will lie; the ground or foun- 


Members of a | 


ject of a suit, and without which there is not 
a cause of action. 101 Ill. 394. 


GIVE. A term used in deeds of convey- 
ance. At common law, it implied a cove- 
nant for quiet enjoyment. 2 Hil. Real Prop. 
366. 

In their ordinary and familiar signification, the 
words “sell” and “give” have not the same mean- 
ing, but are commonly used to express different 
modes of transferring the right to property from 
one person to another. “To sell” means to trans- 
fer for a valuable consideration, while “to give” 
signifies to transfer gratuitously, without any 
equivalent, 14 Md, 184. 


“GIVE AND BEQUEATH.” These 
wards, in a will, import a benefit in point of 
right, to take effect upon the decease of the 
testator and proof of the will, unless it is 


| made in terms to depend upon some contin- 


gency or cundition precedent. 
33 Conn. 297; 8 Wheat. 538. 


GIVE BAIL. To furnish or put in bail 
or security for one’s appearance. 


GIVE COLOR. To admit an apparent 
or colorable right in the opposite party. See 
CoLor, 


GIVER. A donor; he who makes a gift. 


GIVING IN PAYMENT. In Loui- 
siana liw. A phrase (translating the Fr. 
“dation en payement”) which signifies the 
delivery and acceptance of real or personal 
property in satisfaction of a debt, instead of 
a payment in money. See Civil Code La. 
art. 2655. 


GIVING RINGS. A ceremony ancient- 
ly performed in England by serjeants at law 
ab the time of their appointment. The rings 
were inscribed with a motto, generally in 
Latin. 


GIVING TIME. The act of a creditor 
in extending the time for the payment or sat- 
isfaction of a claim beyond the time stipulat- 
ed in the original contract. If done without 
the consent of the surety, indorser, or guar- 
antor, it discharges him. 


9 Cush. 519; 


GLADIOLUS. 
a kind of sedge. 


A little sword or dagger; 
Mat. Paris. 


GLADIUS. Lat. Asword. Anancient 
emblem of defense. Hence the ancient earls 
or comites (the king’s attendants, advisers, 
and associates in his government) were made 
by being girt with swords, (gladéo succineti.) 

The emblem of the executory power of the 


dation of a suit, wilhout which it would not | law in punishing crimes. 4 Bl. Comm. 177. 


GLADIUS 


In old Latin authors, and in the Norman 
taws, this word was used to signify supreme 
jurisdiction, (jus gladit.) 

GLAIVE. Asvword, lance, or horseman’s 
staff. One of the weapons allowed in a trial 
by combat. 


GLANS. In the civil law. Acorns or 
nuts of the oak or other trees. In a larger 
sense, all fruits of trees. 


GLASS-MEN. A term used in St. 1 
Jac. J. ce. 7, for wandering rogues or va- 
grants. 


GLAVEA. <A hand dart. Cowell. 


GLEANING. The gathering of grain 
after reapers, or of grain left ungathered by 
reapers. Held not to be a right at common 
law. 1H. BI. 51. 


GLEBA. A turf, sod, or clod of earth. 
The soil or ground; cultivated land in gen- 
-eval. Church land, (solum et dos ecclesia.) 
Spelman. See GLEBE, 


GLEBM ASCRIPTITIL. YVillein-soc- 
men, who could not be removed from the 
lazd while they did the service due. Lract. 
c. 7; 1 Reeve, Eng. Law, 269. 


GLEBARIA, Turfs dug out of the 
ground, Cowell. 
GLEBE. In ecclesiastical law. The 


land possessed as part of the endowment or 
revenue of a church or ecclesiastical benefice. 

Ir Roman law. A clod; turf; soil. 
Hence, the soil of an inheritance; an agra- 
riaa estate. Servi addietit glebe were serfs 
attached to and passing with the estate. 
Cod. 11, 47, 7, 21; Nov. 54, 1. 


GLISCY WA. InSaxon law. A frater- 
nity. 
GLOMERELLS. Commissioners ap- 


pointed to determine differences between 
scholars in a schoo! or university and the 
cownsmen of the place. Jacob. 


GLOS. Lat. . In the civil law. A hus- 


banil’s sister. Dig. 38, 10, 4, 6. 


GLOSS. An interpretation, consisting of 
one or more words, interlinear or marginal; 
an annotation, explanation, or comment on 
ary passage in the text of a work, for pur- 
poses of elucidation or amplification. Par- 
ticularly applied to the comments on the Cor- 
pus Juris. 


GiLOSSA. A gloss, explanation, or inter- 
pretation. The giosse of the Roman law are 


541 


| with a pair of white gloves. 


GO BAIT, 


brief illustrative comments or annotations on 
the text of Justinian’s collections, made by 
the professors who taught or lectured on 
them about the twelfth century, (especially 
at the law school of Bologna,) and were 
hence called “yilossators.” ‘These glosses 
were at first inserted in the text with the 
words to which they referred, and were called 
“glosse interlineares;” but afterwards they 
were placed in the margin, partly at the side, 
and partly under the text, and called “glosse 
marginales.” A selection of them was made 
by Accursius, between A. D. 1220 and 1260, 
under the title of “Glossa Ordinavia,” which 
is of the greatest authority. Muckeld. Rom, 
Law, § 90. 


Glossa viperina est que corrodit visce 
ra textus. 11 Coke, 34. It is « poisonous 
gloss which corrupts the essence of the text. 


GLOSSATOR. In the civil law. A 
commentator or annotator, <A term applied 
to the professors and teachers of the Roman 
law in the twelfth century, at the head of 
whom was Irnerius. Mackeld. Rom. Law, 
§ 90. 


GLOUCESTER, STATUTE OF. The 
statute is the 6 Edw. I. ¢.1, A. D. 1278. It 
takes its name from the place of its enact- 
ment, and was the first statute giving costs 
in actions. 


GLOVE SILVER. Extraordinary re 
wards formerly given to officers of courta, 
etc.; money formerly given by the sheriff of 
acounty in which no offenders are lelt for 
execution to the clerk of assize and judges’ 
officers. Jacob. 


GLOVES. It was an ancient custom on 


| a maiden assize, when there was no offender 


to be tried, for the sheriff Lo present the judge 
It is an imme- 
morial custom to remove the glove from the 
right hand on taking oath. Wharton, 


GLYN. A hollow between two mount- 
ains; a valley or glen. Co. Litt. 5d, 


GO. To be dismissed from a court, To 
issue from a court. “The court said a man- 
damus must go.” 1 W. Bl. 50. “Let a 
supersedeas go.” 5 Mod. 421. “The writ 
may go.” 18C. B. 35. 

This word, in a statutory provision that 
property “shall go to the survivor,” etc., is 
to be construed a3 equivalent to vest. 


GO BAIL. To assume the responsibility Mi 


of a surety on a hail-bond. 


GO TO PROTEST 


GO TO PROTEST. 
is said to “go to protes6” when it is dishon- 
ored by non-payment or non-acceptance and 
is handed to a notary for protest. 


GO WITHOUT DAY. Words used to 
denote that a party is dismissed the court. 


He is said to go without.day, because there | 


is no day appointed for him to appear again. 


GOAT, GOTE. Inold Englishlaw. <A | 


contrivanes or structure for draining waters 
out of the land into thesea. Cuallis describes 
goats as “usual engines erected and built 
with porteullises and doors of timber and 
stone or brick, invented first in Lower Ger- 
many.” Callis, Sewers, (91,) 112,113. Cow- 
ell defines “gote,” a ditch, sewer, or gutter. 


GOD AND MY COUNTRY. The an- 
swer made by a prisoner, when arraigned, 
in answer to the question, “How will you be 
tried?” In the ancient practice he had the 
choice (as appears by the question) whether 
to submit to the trial by ordeal (by God) or 
to be tried by a jury, (by the country;) and 
it is probable that the original form of the 
answer was, “By God or my country,” where- 
by the prisoner averred his innocence by de- 
clining neither of the modes of trial. 


GOD-BOTE. Anecclesiastical or church 
fine paid for crimes and offenses committed 
against God, Cowell. 


GOD-GILD. That which is offered to 
God or his service. Jacob. 


GOD’S ACRE. 


GOD’S PENNY. In old English law. 
Earnest-money; money given as evidence of 
the completion of a bargain. This name is 
probably derived from the fact that such 
money was given to the church ordistributed 
in alms. 


GOGING-STOLE. Anold form of the 
word “eucking-stool,” (7. 0.) Cowell. 


GOING CONCERN. <A firm or corpo- 
ration which, thongh embarrassed or even 
insolvent, continues to transact its ordinary 
business. 30 Fed. Rep. 865. 


GOING OFF LARGE. 
tical phrase, and signifies having the wind 
frees on either tack. 1 Newb. Adm. 8, 26; 6 
McLean, 152, 170. 

A vess:], in nautical technicality, “is go- 
ing off large’- when the wind blows from 
some point “abaft tle beam;” is going “be- 
fore the wind” when the wind is “free,* 
comes over the stern, and the yards of the 


A churchyard. 


| preceding pleading. 


This is a nau. | 


542 


Commercial paper ’ 


Goon 


ship are bracedsquareacross. 1 Newb. Adin, 
115. 


GOING THROUGH THE BAR. The 
act of the chief of an English common-law 


| court in demanding of eyery member of the 


bar, in order of, seniority, if he has anything 
to move. This was done at the sitting of the 
court each day in term, except special paper 
days, crown paper days in the queen’s bench, 
and revenue paper days in the exchequer. 
On the last day of term this order is reversed, 
the first and second time round. In the ex- 
chequer the postman and tubman are first 
called on. Wharton. 


GOING TO THE COUNTRY. When 
a party, under the common-law system of 
pleading, finished his pleading by the words 
“and of this he puts himself upon the coun- 
try,” this was called “going to the country.” 
It was the essential termination toa pleading 
which took issue upon a material fact in the 
Wharton. 


GOING WITNESS. One whois about to 
take his departure from the jurisdiction of the 
court, although only into a state or country 
under the general sovereignty; as fram one 
to another of the United States, or from 
England to Scotland. 


GOLDA. Amine. Blount. A sink or 
passage for water. Cowell. 
GOLDSMITHSY’ NOTES. Bankers’ 


cash notes (7. e., promissory notes given by 
a banker to his customers as acknowledg- 
ments of the receipt of money) were origi- 
nally called in London “goldsmiths’ notes,” 
from the circumstance that all the banking 
business in England was originally transact- 
ed by goldsmiths. Wharton. 


GOLDWIT. A mulct or fine in gold. 


GOLIARDUS. L. Lat. A jester, buf- 
foon, or juggler. Spelman, voc. “Goliai- 
densis.” 


GOMASHTAHGH. In Hindulaw. An 
agent; a steward; a confidential factor; a 
representative. 


GOOD. 1. Valid; sufficient in law; ef 
fectual; unobjectionable. 

2. Responsible; solvent; able to pay an 
amount specified. 

3. Of a value corresponding with its terms; 
collectible. A note is said to be “good” 
when the payment of it at maturity may be 
relied on. 


Writing the word “Good” across the face of a 
check is the customary mode in which bankers at 


a 


im 


GOOD ABEAKING 


the present day certify that the drawer has funds 
to meet it, and that it will be paid on presentation 
for that purpese. 


GOOD ABHARING, See ABEARANOE. 


GOOD AND LAWFUL MEN. Those 
who are not disqualified for service on juries 
by nomage, alienage, infamy, or lunacy, and 
who reside in the county of the venue, 


GOOD AND VALID. Reliabie, suii- 
cient, und unimpeachablein law; adequate; 
respousille. See Goon. 


GOOD BEHAVIOR. Orderly and law- 
ful conduct; behavior such as is proper tora 
peaceable and law-abiding citizen. 


545 


Surety | 


GOODS SOLD AND DELIVERED 


ployed therein, in consequence of the general 
public patronage and encouragement which 
it receives from constant or habitual custom- 
ers, on account of its local position, or com- 
mon celebrily, or reputation for skill or af- 
fuense or punctuality, or from other acei- 
dental circumstances or mecessities, or even 
from ancient partialities or prejudices. 
Story, Partn. § 99; 33 Cal. 624, 

The good-will of a business is the expecta- 


| tion of continued public patronage, but it does 


not inelude a right to use the name of any 
person from whom it was acquired. Civil 
Code Cal. § 992; Civil Code Dak. § 577. 

The term “pood-will” does not mean simply the 
advantage of ocenpying particular premises which 


vf good behavior may be exacted from any | have been occupicd by a manufacturer, ete. It 
one who manifests an intention to commit means every advantage, every positive advantage, 


crime or is otherwise reasonably suspected 
of a criminal design. 


GOOD CONSIDERATION. As distin- 
fuished from talwable consideration, a con- 
sideration founded on motives of generosity, 
prudence, and natural duty; such as natural 
love and affection. 


GOOD COUNTRY. 
Good men of the country. 
a jury. 


GOOD FAITH. Good faith consists in 
an honest intention to abstain from taking 
any unconscientious advantage of another, 
even through the forms or technicalities of 
law, together with an absence of all informa- 
tion or belief of facts which would vender 
the transaction unconscientious. Civil Code 
Dak, § 2105; 1 Dak. 399, 46 N. W. Rep. 
1132. 

As to a purchaser in good faith, see BoNA 
Five PURCHASER. 


GOOD JURY. A jury of which the 
members are selected from the list of special 
jurors. See L. R.5 C. P. 155. 


GOOD TITLE. This means such a title 
as a court of chancery would adopt as a suffi- 
cient ground for compelling specific perform- 
alice, and such 4 titleas would be a good an- 
4wer to an action of ejectinent by any claim- 


In Scotch law, 
A nae given to 


anf 6 Exch. 873. See, also, 23 Barb. 370. | 


GOOD-WILL. 
age of any established trade or business; the 
benefit or advantage of having established a 
business and secured its patronage by the 
public. 

The advantage or benefit which is acquired 
by an establishment, beyond the mere value 
of the capital, stocks, funds, or property em- 


The enstom or patron- | 


that has been acquired by a proprietor in carrying 
on his business, whether connected with the prem- 
ises in which the business is conducted, or with 
the name under which it is managed, or with any 
other matter carrying with it the benefit of the 
business. 61 N. ¥. 226. 


GOODRIGHT, GOODTITLE. The 
fictitious plaintiff in the old action of eject- 
ment, most frequently called “John Doe,” 
was sometimes called “Goodright” or “Good- 
title.” 


GOODS. In contracts. The term 
“goods” is not so wide as “chattels,” for it 
applies to inanimate objects, and does not tn- 
clude animals or chattels real, as a lease for 
years of house or land, which “chattels” does 
include. Co. Litt. 118; 1 Russ. 376. 

In wills. In wills “goods” is nomen gen- 
eralissimum, and, if there is nothing to limit 
it, will comprehend all the personal estate of 
the testator, as stocks, bonds, notes, money, 
plate, furniture, ete. 1 Atk, 180-182, 


GOODS AND CHATTELS. This 
phrase is a general denomination of personal 
property, as distinguished from real property; 
the term “chattels” having the effect of ex- 
tending its scope to any objects of that naf- 
ure which would not properiy be included by 
the term “goods” alone, é. g., living animals, 
emblements, and fruits, and ferms under 
leases for years. The general plirase also 
embraces choses in action, as well a8 person- 
alty in possession. 


fn wills. The term ‘goods and chattels” 
will, unless restrained by the context, pass 
all the personal estate, including leases for 
years, cattle, corn, debts, and thelike. Ward, 
Leg. 208, 211. 


GOODS SOLD AND DELIVERED. 
A phrase frequently used in the action of as- 


SST 


GOODS, WARES, ETC. 544 


GOVERNMENT DE FACTO 


sumpsit, when the sale and delivery of goods |} by means of which the executive, judicial, 


furnish the cause, 


“GOODS, WARES, AND MERCHAN- 
DISH.” <A general and comprehensive des- 
fgnation of such chattels as are ordinarily 
the subject of traffic and sale. The phrase 
ig used in the statute of frauds, and is fre- 
quently found in pleadings and other instru- 
ments. As to its scope, see 20 Pick. 9; 118 
Mass. 285; 2 Mason, 407; 2 Sum. 362; 4 
Blatchf. 136; 20 Mich. 357; 6 Wend. 355; 40 
Ind. 593; Dudley, 28; 55 Lowa, 520, 8 N. W. 
Rep. 834; 2 Pars. Cont. 330; Benj. Sales, 
111; 2 Kent, Comm. 510, note. 


GOOLE. Inold Englishlaw. A breach 
in a bank or sea wall, or a passage worn by 
the flux and reflux of the sea St. 16 &17 
Car. JIG li. 


GORCE, or GORS. A wear, pool, or 
pit of water. Termes de la Ley. 


GORE. A small, narrow slip of ground, 
Cowell. 


GOSSIPRED. In canon law. Com- 
paternity; spiritual atfinity. 


GOUT. In medical jurisprudence. An 
inflammation of the fibrous and ligamentous 
parts of the joints. 


GOVERNMENT, 1. The regulation, re- 
straint, supervision, or control which is ex- 
ercised upon the individual members of an 
organized jural society by those invested 
with the supreme politiea! authority, for the 
good «nd welfare of the body politie; or the 
act of exercising supreme political power or 
control. 

2. The system of polity in astate; that form 
of fandamental rules and principles by which 
a nation or state is governed, or by which 
individual members of a body politic are to 
regulate their social actions; a constitution, 
either written or unwritten, by which the 
rights and duties of citizens aud pubiie oifi- 
cers are prescribed and defined, as a monarch- 
ical government, & republican government, 
ete. Webster. 

3. Anempiro, kingdom, state, or independ- 
ent political community; as in the phrase, 
“Compacts between independent govern- 
meuts.” 

4, The sovereign or supreme power in a 
state or nation. 

5, The machinery by which the sovereign 
power in a state expresses its will and exer- 
cises its functions; or the framework of po- 
litical institutions, departments, and otiices, 


legislative, and adininistrative business of 
the state is carried on. 

6. The whele class or body of office-holders 
or functionaries considered in the aggregate, 
upon whom devolves the executive, judicial, 
legislative, and administrative business of 
the state. 

7. In a colloquial sense, the United States, 
or ils representatives, considered as the pros- 
ecutor in a criminal action; as in the phrase, 
“the government objects to the witness.” 

We understand, in modern political science, by 
“state,” in its widest sense, an independent socie- 
ty, acknowledging no superior, aud by the term 
“vovernment, ” that institution or aggregate of in- 
stitutions by which that socicty makes and carries 
out those rules of action which are necessary to en- 
able men to live in a social state, or which are im- 
posed upon the people forming that society by 
those who possess the power or authority of pre 
seribing them. “Government” is the aggregate of 
authorities which ruleasociety. By “administra- 
tion,” again, we understand in modern times, and 
especially in more or less free countri¢s, the aggre- 
gate of those persons in whose hands the reins of 
government are for the time being, (the chief min- 
isters or heads of departments.) But the terms 
“state,” “government,” and “adminisLration” ure 
not always used in their strictness. The govern- 
ment of astate being its most prominent feature, 
which is most readily perceived, “government” 
hus frequently been used for “state;” and the pub- 
licists of the last century almost always used the 
term “government,” or “form of government,” 
when they discussed the different political socie- 
ties orstutes On theother band, “government” is 
often uscd, to this day, for ‘administration, ” in the 
sense in which it has been explained. Louvier. 


GOVERNMENT AWNNUITIES SO- 
CIETIES. These societies are formed in 
England under 3 & 4 Wm. LV. ¢. 14, to en- 
able the industrious classes fo muke provis- 
ions for themselves by purchasing, on advan- 
tageous terms, a government annuity for 
life or term of years. By 16 & 17 Vict. c¢. 
45, this act, as well as 7 & 8 Vict. ec. 33, 
amending it, were repealed, and the whole 
law in relation to the purchase of govern- 
ment annuities, through the medium of gav- 
ines banks, was consolidated. And by 27 & 
28 Vict. ¢. 43, additional fac‘lities were af- 
forded for the purchase of such annuities, 
and for assuring payments of money on 
death. Wharton. 


GOVERNMENT DE FACTO. A gov- 
ernment of fact. A government actually ex- 
ercising power and control in the state, aa 
opposed to the true and lawful government; 
a government not established according to the 
constitution of the state, or not lawfully en- 
titled to recognition or supremacy, but which 


GOVERNMENT DE FACTO 


has nevertheless supplanted or displaced the 
government de jure. 

A government deemed unlawful, or deemed 
wrongiul or unjust, which, nevertheless, re- 
ceives presently habitual obedience from the 
bulk of the community. Aust. Jur, 324. 


Yhere are several degrees of what is called “de 
facto government.” 

Such a government, in its highest degree, as- 
suines 4 character very closely resembling that of 
a lawful government. This is when the usurping 
government expels the regular authorities from 
their customary seats and functions, and estab- 
lishes itself in their place, and so becomes the act- 
nal government of a country. The distinguishing 
characteristic of auch a government Is that adher- 
ents to it in war against the government de jure 
do notincur the penalties of treason; and, under 
ecrtain limitations, obligations assumed by it in be- 
half of the country or otherwise will, in general, 
be respected by the government de jure when re- 
stored. 

But there is another description of government, 
called also by publicists a “government de jacto,” 
but which might, perhaps, be more aptly denomi- 
nated a “government of paramount force.” Its 
distinguishing characteristics are (1) that its ex- 
{stence is maintained by active military power, 
within the territories, and against the rightful au- 
thority, of an established and Jawful government; 
and (2) that, while it exists, it must necessarily ba 
obeyed in civil matters by private citizens who, by 
acts of obedience, rendered in submission to such 
force, do not become responsible, as wrong-doers, 
for those acts, though not warranted by the laws 
of the rightful government. Actual governments 
of this sort are established over districts differing 
greatly in extentand conditions. They areusually 
administered directly by military authority, but 
they may be administered, also, by civil authority, 
supported more or less by military force. 8 Wall. 
6, 9. 

The term “de facto,” as descriptive of a govern- 
ment, has no well-fixed and definite sense. It is, 
perhaps, most correctly used as signifyiug a gov- 
ernment completely, though only temporarily, 
established in the place of the lawful or regular 
government, occupying ite capitol, and exercising 
its power, and which is ultimately overthrown, 
and the authority of the government dejure re- 
established. 42 Miss. 651, 703. 

A government de facto is a government that un- 
lawfully gets the possession and control of thse 
rightful legal government, and maintains itself 
there, by force and arms, against the will of such 
legal government, and claims to exercise the pow- 
ers thereof. 43 Ala. 204. 


GOVERNMENT DE JURE. A gov- 
ernment of right; the true and lawful gov- 
ernment; a government established accord- 
Ing to the constitution of the state, and law- 
fully entitled to recognition and supremacy 
and the administration of the state, but which 
is actually cut off from power or control. 

A government deemed lawful, or deemed 
rightful or just, which, nevertheless, has been 


545 


GRAFIO 


receives not presently (although it received 
formerly) habitual obedience from the bulk 
of the community, Aust. Jur. 324. 


GOVERNOR. The title of the chief ex- 
ecutive in each of the states and territories of 
the United States; and also of the chief mag- 
istrate of sume colonies, provinces, and de 
pendencies of other nations. 


GRACE. This word is commonly used in 
contradistinetion to “right.” Thus, in St. 22 
Edw, I11., the lord chancellor was instructed 
to take cognizance of matters of grace, being 
such subjects of equity jurisdiction as were 
exclusively matters of equity. Brown. 

A faculty, license, or dispensation; also 
general and free pardon by act of parliament. 
See AcT or GRACE. 


GRACE, DAYS OF, Time of indul- 
gence granted to an acceptor or maker for 
the payment of his bill of exchange or note. 
It was originally a gratuitous favor, (hence 
the name,) but custom has rendered ita legal 
right. 


GRADATIM. Inold English law. By 
degrees or steps; step by step; from one de- 
greeto another. Bract. fol. 64. 


GRADIENT. Moving step by atep; a 
grade; the deviation of railways from a level 
surface to an inclined plane. 


GRADUATES. Scholars who have taken 
a degree in a college or university. 


GRADUS. In the civil and old English 
law. A measure of space. A degree of re- 
lationship. 

A step or degree generally; 4. g., gradus 
honorum, degrees of honor. Vicat. A pul- 
pit; a year; a generation. Du Cange. 

A port; any place where a vessel can be 
brought to land. Du Cange, 


GRADUS PARENTELA, A pedigrea; 
a table of relationship. 


GRAFFARIUS. Inold Englshlaw, A 
graffer, notary, or scrivener. St. 6 Hon. 
Vie. 1. 


GRAFFER. Anotaryorscrivener. Sea 
St.5 Hen. VIII. c.1. The word is a corrup- 
tion of the French “greffier,” (q. v.) 


GRAFFIUM. 
or eartulary of deeds and evidences. 


A writing-book, register, 
Cowell. 


GRAFIC. A baron, inferior to a count. 


| A fiscal judge. An advocate. Spelman; 


supplunted or displaced; that is to say, which | Cowell. 


AM. DICT. LAW—95 


GRAFT 


GRAFT. A term used in equity to de- 
note the confirmation, by relation back, of 
the right of a mortgagee in premises to which, 
at the making of the mortgage, the morbgag- 
or had only an imperfect title, but to which 
the latter has since acquired a good title. 


GRAIL, A gradual, or book containing 
some of the officea of the Romish Church. 

A chalice: a broad dish er vessel. The 
holy grail was the vessel out of which our 
Lord was believed to have eaten at the Last 
Supper. Cowell. 


GRAIN. 
fourth part of a penny weight, 
corn sown in the ground. 


GRAINAGE, An ancient duty in Lon- 
don under whieh the twentieth part of salt 
imported by aliens was taken. 


GRAMMAR SCHOOL. In England, 
this term designates a school in which such 
instruction is given as will prepare the stu- 
dent to enter a college or university, and in 
this sense the phrase was used in the Massa- 
chusetts colonial act of 1647, requiring every 
town containing a hundred householders to 
set up a “grammar school.” See 103 Mass. 
97. But in modern American usage the 
term denotes a school, intermediate bebween 
the primary schoo] and the high school, in 
which English grammar and other studies of 
that grade are taught. 


In Troy weight, the twenty- 
Any kind of 


Grammatica falsa non vitiat chartam. 
9 Coke, 48. False grammar does not vitiate 
a deed. 


GRAMMATOPHYLACIUM. 
Lat. ) 
writings or records. 


(Grieco- 
Inthe civil law. A place for keeping 
Dig. 48, 19, 9, 6. 


GRAMME. The unit of weight in the 
Inetric system. The gramme is the weight 
of a cubic centimeter of distilled water at the 
temperature of 49°C. It is equal to 15.4341 
grains troy, or 5.6481 drachms* avoirdupois. 


GRANATARIUS. In old English law. 
An officer having charge of a granary. Fleta, 
lib. 2, c. 82, § 1; Id. ec. 84. 


GRAND ASSI“E. A peculiar species of 
trial by jury, introduced in the time of Henry 
Il., giving the tenant or defendant in a writ 
of right the alternative of a trial by battel, 
or by his peers. Abolished by3 &4Wm.IV. 
ec. 42,§ 13. See 3 Bl. Comm, 341. 


GRAND BILL OF SALE. In En- 
glish law. The name of an instrument used 
for the transfer of a ship while she is at sea, 


546 


cm 
SS 
en 


GRAND JURY 


An expression which is understood to re- 
fer to the instrument whereby a ship was 
originally transferred from the builder Lo the 
owner, or first purchaser. 3 Kent, Comin. 
183. 


GRAND CAPE. In practice. A ju- 
dicial writ in the old real actions, which is- 
sued for the demandant where the tenant, 
after being duly summoned, neglected to ap- 
pear on the return of the writ, or to cast an 
essoin, or, in case of an essoin being cast, 
neglected to appear on the adjournment day 
of the essoin; its object being to compel an 
appearance. osc. Real Act. 165, et seq. It 
was culled a “cape,” from the word with 
which it commenced, and a “grand cape” (or 
cape magnum) to distinguish it from the 
petit cape, which lay efter appearance. 


GRAND COUTUMIER. A collection 
of customs, laws, and forms of procedure in 
use in carly times in France. See Couru- 
MIL. 


GRAND DAYS. In English practice. 
Certain days in the terms, which are solemn- 
ly kept in the inns of court and chancery, 
viz., Candlemas day in Hilary term, Ascen- 
sion day in Master, St. John the Baptist’s 
day in Trinity, and All Saints in Michael- 
mas; Which aredies non juridici. Termesde 
la Ley; Cowell; Blount. ‘They are days set 
apart for peculiar festivity; the members of 
the respective inns being on such occasions 
regaled at their dinner in the hall, with more 
than usual sumptuousness. Holthouse. 


GRAND DISTRESS, WRIT OF. A 
writ formerly issued in the real action of 
quare impedit, when uo appearance had 
been entered after the attachment; it com- 
manded the sheriff to distrain the defend- 
ant’s lands and chattels in order to compel 
appearance. It is no longer used, 23 & 24 
Vict. ¢. 126, § 26, having abolished the ac- 
tion of guure tmpedit, and substituted for 
it the procedure in an ordinary action. Whar- 
ton. 


GRAND JURY. A jury of inquiry, con- 
sisting of from twelve to twenty-three men, 
who are summoned and returned by the 
sheriff to each session of the criminal courts, 
and whose duty is to receive complaints and 
accusations in eriminal cases, hear the evi- 
dence adduced on the part of the state, and 
find bills of indictnient in cases where they 
are satisfied a trial ought to be had. They 
are first sworn, and instructed by the court. 
This is called a “grand jury” besause it com- 


GRAND LARCENY 547 


prises a greater number of jurors than the 
ordinary trial jury or “petit jury.” 


GRAND LARCENY. In criminal law. 
In England, simple larceny was originally 
divided into two sorts,—grend larceny, 
where the value of the goods stolen was 
above twelve pence, and petit larceny, where 
their value was equal to or below that sum, 
4 Bl. Comm. 229. The distinction was abol- 
ished in England by St. 7 & 8 Geo. IV. 
c. 29, and is not generally recognized in the 
United States, 


GRAND SERJEANTY. A species of 
tenure in capite, resembling knight-service, 
as the service or render was of a free and 
honorable nature and military in its charac- 
ter. Bui the tenant by grand serjeanty was 
bound, instead of attending the king gen- 
erally in his wars, to do some special honor- 
ary service to the king in person, as to carry 
his banner or sword, or to be his butler or 
ehampion at his coronation. Litt. § 153; 2 
Bl. Comm, 73; 1 Steph. Comm. 188. 


GRANDCHILD. Tihechild of one’s 


ehild. 


GRANDFATHER. The father of either 
of one’s parents. 


GRANDMOTHER. The mother of ei- 
ther of one’s parents. 


GRANGE. A farmfurnished with barns, 
granaries, stables, and all conveniences for 
busbandry. Co. Litt. 5a. 


GRANGBARIUS. A keeperofagrange 
or farm. 


GRANGIA. A grange. Co. Litt. 5a. 


GRANT. A generic term applicable to 
all transfers of real property. 8 Washb. Real 
Prop. 181, 353. 

A transfer by deed of that which cannot be 
passed by livery. Williams, Real Prop. 147, 
149, 

An act evidenced by letters patent under 
the great seal, granting something from tle 
king to a subject. Cruise, Dig. tit. 33, 34. 

A technical term made use of in deeds of 
conveyance of lands to import a transfer. 3 
Washb. Real Prop. 378-380. 

Though the word “grant” was originally 
made use of, in treating of conveyances of 
interests in lands, to denote a transier by deed 
of that which could not be passed by livery, 
and, of course, was applied only to ineorpo- 
real hereditaments, it has now become a gen- 


GRASS WEEK 


erie term, applicable to the transfer of ail 
classes of real property. 3 Washb. Real Prop 
181. 

As distinguished from a mere license, a grant 
passes some estate or interest, corporeal or incor- 
poreal, in the lands which it embraces; can cnly 
be made by an iustrument in writing, under seal; 
and is irrevocable, when made, unless an express 
power of revocation isreserved. A license is & 
mner'é authority; passes no estate or interest what- 
ever; may be made by parol; is revocable at will; 
and, when revoked, the protection which it gave 
ceases to exist. 3 Duer, 255, 258. 

The term “grant,” in Scotland, is used in 
reference (1) to original dispositions of land, 
as When a lord makes grants of land among 
tenants; (2) to gratuitous deeds. Paterson. 
In such case, the superior or donor is said to 
to grant the deed; an expression totally un- 
known in English law. Mozley & Whitley. 

By the word “grant,” in a treaty, is meant 
not only a formal grant, but any concession, 
warrant, order, or permission to survey, pos- 
sess, or setile, whether written or parol, ex- 
press, or presumed from possession. Sucha 
grant may be made by law, as well as bya 
patent pursuant toa law, 12 Pet.410. Ses 
¥ Adol. & E. 582; 5 Mass. 472; 9 Vick. 80. 


“GRANT, BARGAIN, AND SELL.” 
Operative wurds in conveyances of real es- 
tate. 


GRANT OF PERSONAL PROPER- 
TY. <A method of transferring personal 
property, distinguished from a gift by being 
always founded on some consideration or 
equivalent. 2 Bl. Comm. 440, 441. Its 
proper legal designation is an “assignment,” 
or “bargain and sale.” 2Steph. Comm. 102, 


GRANT TO USES. Thecommon grant 
with uses superadiled, which has become the 
favorite mode of transferring realty in Eng- 
land. Wharton. 


GRANTEE. The person to whoma grant 
is made. 


GRAWTOR. The person by whom a 
grant is made. 


 GRANTZ. In old English law. Noble- 


men or grindees. Jacob. 


GRASS HEARTH. In old records. The 
grazing or turning up the earth with a plow. 
The name of a customary service for inferior 
tenants to bring their plows, and do one day’s 
work for their lords. Cowell. 


GRASS WEEK. Rogation week, so 
called anciently in the inns of court and 
chancery. 


GRASS WIDOW 


GRASS WIDOW. A slang term for a 
woman separated from er husband by aban- 
donment or prolonged absence; a woman 
living apart from her husband. Webster. 


GRASSON, orGRASSUM. A fine paid 
upon the transfer of a copyheld estate. 


GRATIFICATION. A gratuity; a rec- 
ompense or reward for services or benefits, 
given voluntarily, without solicitation or 
promise. 


GRATIS. Freely; gratuitously; with- 
out reward or consideration. 


GRATIS DICTUM. A voluntary asser- 
tion; a statement which a party is not legal- 
ly bound to make, or in which he is not held 
to precise accuracy. 2 Kent, Comm. 486; 6 
Mete. ( Mass.) 260. 


GRATUITOUS. 
legal consideration. 
of conveyance, 

In old English law. Voluntary; with- 
out foree, fear, or favor. Gract. fols. 11, 17. 


GRATUITOUS CONTRACT. In the 
civil law. One which tends wholly to the 
benefit or advantage of one of the parties, 
without any compensation, proiit, or gain 
moving to the other. 


GRATUITOUS DEEDS. Instruments 
inade without binding consideration. 


GRAVA. Inold English law. A grove; 
a small wood; acoppice or thickeb. Co. Litt. 
46. 

A thiek wood of high trees. 


GRAVAMEN. The burden or gist of a 
charge; the grievance or injury specially 
complained of. 


Without valuable or 
A term applied to deeds 


Blount. 


In English ecclesiastical law. A griev- 
ance complained of by the clergy before the 
bishops in convocation. 


GRAVATIO. Anaccusation or impeach- 
ment. Leg. lithel. c. 19. 


GRAVE. A sepulcher. 
a dead body is interred. 


GRAVIS. Grievous; great. 
damnum, to the grievous damage. 
40. 


GRAVIUS. A graf; a chief magistrate 
or officer. A term derived from the more 
ancient “gvato,” and used in combination 
with various other words, as an official title 
in Germany; as Margravius, Kheingravius, 
Landgravius, ete. Spelman. 


A place where 


11 Coke, 


548 


Ad grave | 


GREEN WAX 


Gravius est divinam quam tempora- 
lem ledere majestatem. It is more seri- 
ous to hurt divine than temporal majesty. 
11 Coke, 29. 


GRAY’S INN, An inno of court. Sea 
Inns oF Court. 


GREAT CATTLE. All manner of 


beasts except sheep and yearlings. 2 Rolle, 
173. 


GREAT CHARTER. 
(g. vd.) 


GREAT LAW, THE, or “The Body of 
Laws of the Province of Pennsylvania and 
Territories thereunto belonging, Past at an 
Assembly held at Chester, alias Upland, the 
7th day of the tenth month, called * Decem- 
ber,’ 1682.” This was the first code of laws 
established in Pennsylvania, and is justly 
celebrated for the provision in its first chap- 
ter for liberty of conscience. Bouvier. 


GREAT SHAL. In English law. A 
seal by virtue of which w great part of the 
royal authority is exercised. The office of 
the lord chancellor, or lord keeper, is created 
by the delivery of the great seal into his cus- 


Magna Charte, 


tody. There is one great seal for al] public 
acts of state which concern the United 
Kingdom. Mozley & Whitley. 


GREAT TITHES. In English ecclesi- 
astical law. Tithes of corn, pease and beans, 
hay and wood. 2 Chit. Bl. Comm. 24, note; 
3 Steph. Comm. 127, 


GREE. Satisfaction for an offense com- 
mitted or injury done. Cowell. 


GREEK KALENDS. <A colloquial ex- 
pression tosignify a time indefinitely remote, 
there being no such division of time known 
to the Greeks. 


GREEN CLOTH. In Englishlaw. A 
board or court of justice held in the counting- 
house of the king’s (or queen’s) househoid. 
and composed of the lord steward and infe- 
rior officers. It takes its name from the 


| green cloth spread over the board at which it 


is held. Wharton; Cowell. 


GREEN SILVER. A feudal eustom in 
the manor of Writtel, in Essex, where every 
tenant whose front door opens to Greenbury 
shall pay a haif-penny yearly to the lord, by 
the name of “green silver” or “rent.” 
Cowek. 


GREEN WAX. In English law. The 
name of the estreals in the exchequer, deliv- 


GREENBACK 


549 


GROSS NEGLIGENCE 


ered to the sheriff under the seal of that court, | wished to marry clandestinely to go to Gretna 


which was impressed upon green wax. 


GREENBACK. The popular and almost 
exclusive name applied to all United States 
treasury issues. Itis not applied toany other 
species of paper currency; and, when em- 
ployed in testimony by way of description, is 
as certain as the phrase “treasury notes.” 
23 Ind. 21. 


GREENHEW. In forest law. 
as vert, (g. v.) Termes de la Ley. 


GREFFIERS. In French law. Regis- 
trars, or clerks of the courts. They are olli- 
cials attached to the courts to assist the judges 
in their duties. They keep the minutes, 
write out the judgments, orders, and other 
decisions given by the tribunals, and deliver 
copies thereof to applicants. 


GREGORIAN CODE. The codeor col- 
lection of constitutions made by the Roman 
jurist Gregorius. See Copex GREGORIANUS. 


GREGORIAN EPOCH. Thetime from 
which the Gregorian calendar or computation 
dates; z. ¢., from the year 1582. 


GREMIO. InSpanishlaw. A guild; an 
assocjution of workmen, artificers, or mer- 
chants following the saine tirade or business; 
designed to protect and turther the interesis 
of their craft. 


GREMIUM. Lat. The bosom or breast; 
hence, derivatively, safeguard or protection. 
In English law, an estate which is in abey- 
ance is said to be in gremio legis; that is, in 
the protection or keeping of the law. 


Thesame 


GRENVILLE ACT. The statute 10 
Geo, II. c. 16, by which the jurisdiction over 
parliamentary election petitions was trans- 
ferred from the whole house of commons to 
select committees. Repealed by 9 Geo. LY. 
e. 22, § 1. 


GRESSUME. In English law. A cus- 
tomary fine due from a copyhold tenant on 
the death of the lord. 1 Strange, 654; 1 
Crabb, Real Prop. p. 615, $778. Called also 
“grassum,” and “yrossome.” 


GRETNA GREEN MARRIAGE. A 
marriige celebrated at Gretna, in Dumfries, 
(bordering on the county of Cumberland, ) in 
Scotland. By the law of Scotland a valid mar- 
Tiuge may be contracted by consent alona, 
without any other formality. When the 
marriage ach (26 Geo. I. c. 33) rendered the 
publication of banns, or a license, necessary 
in England, it became usual for persons who 


Green, tha nearest part of Scotland, und 
marry according to the Scotch law; so a sort 
of chapel was built at Gretna Green, in which 
the English marriage service was performed 
by the village blacksmith. Wharton. 


GREVA. Inold records. Theseashore, 
sand, or beach. 2 Mon. Angl. 625; Cowell 


GRIEVED. Agegrieved. 3 East, 22. 

GRITH. Peace; protection. Termes de 
la Ley. 

GRITHBRECH. Sax. Breach of the 


king’s peace, as opposed to frithbrech, a 
breach of the nation’s peace with other na- 
tions. 


GRITHSTOLE, Sax. InSaxonlaw. A 
seat, chair, or place of peace; a sanctuary; a 
stone within a church-gate, to which an 
offender might flee. 


GROCER. In old English law. A mer- 
chant or trader who engrossed all vendible 


merchandise; an engrosser. St. 37 Edw. 
Ill. c. 5. See ENGROSSER. 
GRONNA. Inold records. A deep hol- 


low or pit; a bog or miry place. Cowell. 


GROOM OF THE STOLE. In Eng- 
land. An officer of the royal household, who 
has charge of the king's wardrobe. 


GROOM PORTER. Formerly an ofiicer 
belonging to the royal household. Jacob. 


GROSS. Great; culpable. General. Ab- 
solute or entire. <A thing in gross exists in 
its own right, and not as an appendage to 
another thing. 


GROSS ADVENTURE. In maritime 
law. A loan on bottomry. So named be 
cause the lender, in case of a loss, or expense 
incurred for the common safety, must con- 
tribute to the gross or general average. 


GROSS AVERAGE. In maritime law. 
A contribution made by the owners of a ship, 
its cargo, and the freight, towards the loss 
sustained by the voluntary and necessary sac- 
rifice of property for the common safety, in 
proportion to their respective interests. 
More commonly called “general average,” (q. 
ov.) Seed Kent, Comm. 292; 25teph. Comm. 
179. 


GROSS NEGLIGENCE. Inthe law of 
bailment. The want of slight diligence. 
The want of that care which every man of 


| common sense, how inattentive soever, takes 


of his own property. The omission of that 


GROSS WEIGHT 5 


cars which even inattentive and thoughtless 
men never fail to take of their own property. 


GROSS WEIGHT. The whole weight 
of goods and merchandiso, including the dust 
and dross, and also the chest or bag, et¢., up- 
en which tare and tret are allowed. 


GROSSH AVANTURE. Hore le 
French marine law. The contract of bot- 
tomry. Ord. Mar. liv. 3, tit. 5. 


GROSSE BOIS. Timber. Cowell. 


GROSSEMENT. L. Fr. Largely, 
greatly. Grossement enseint, big with child. 
Plewd. 76. 


GROSSOME. In old English law. A 
fine, or sum of money paid foralease. Plowd. 
270, 271. Supposed to be @ corruption of 
gersuma, (g. 0.) See GRESSUME. 


GROUND ANNUAL. In Scotch law. 
An annual rent of two kinds: Jirst, the 
feu duties payable to the lords of erection and 
their successors; se-ond, the rents reserved 
for building lots ina city, where swb-feus are 


prohibited. This rent is in the nature of a 
perpetual annuity. Bell,; Ersk. Inst, 11, 3, 
52. 


GROUND LANDLORD. The grantor 
of an estate on which a ground-rent is re- 
served. 


GROUND-RENT. A perpetual rent re- 
served to himself and his heirs, by the grantor 
of land in fee-simple, out of the land con- 
veyed. It isin the nature of an emphyteutic 
rent. Also, in English law, rent paid ona 
building lease. 


GROUND WRIT. By the English com- 
mon-law procedure act, 1852, c. 121, “it shall 
not be necessary to issue any writ directed to 
the sheriff of the county in which the venue 
is laid, but writs of execution may issue at 
once into any county, and be directed to and 
executed by the sheriff of any county, wheth- 
er a county palatine or not, without reference 
to the county in which the veiue is laid, and 
without any suggestion of the issuing of a 
prior writ into such county.” Before this 
enactment, a ea. sa. or fi. fa. could not be 
issued into a county different from that in 
which the venue in the action was laid, with- 
out first issuing a writ, called a “ground 
writ,” into the latter county, and then another 
writ, which was called a “testatum writ,” 
into theformer. Theabove enactment abol- 
ished this useless process. Wharton. 


50 GUARANTY 
GROUNDAGE. A custom or tribute 
paid for the standing of shipping in port. 
Jacob. 


GROWING CROP. A crop must be 
considered and treated as a growing crop 
from the. time the seed is deposited in the 
ground, as at that time the seed loses ihe 
qualities of a chattel, and becomes a part of 
the freehold, and passes wilh a sale of it. 
69 Ala. 435. 

Growing erops of grain, and other annual 
productions raised by cultivation of the earth 
and industry of mun, are personal chattels. 
Growing trees, fruit, or grass, and other nat- 
ural products of the earth, are parcel of the 
land. 1 Denio, 550, 


GROWTH HALF-PENNY. A rate 
paid in some places for the tithe of every fat 
| beast, ox, or other unfruittul cattle. Clayt. 
92. 
GRUARII. The principal officers of a 
forest. 


GUADIA. In old European law. A 
pledge. Spelman; Calyin. A custom. Spel- 
man, Spelled also “ wadia.” 


GUARANTEE. He to whom a guaran- 
ty ismade. This word is also used, as a noun, 
to denote the contract of guaranty or the ob- 
ligation of a guarantor, and, as a verb, to de- 
note the action of assuming the responsibili- 
ties of a guarantor. But on the general 
principle of legal orthography,—that the title 
of the person to whom theaction passes over 
should end in “ee,” as “donee,” “grantee,” 
“payee,” “bailve,” “drawee,” etc.,—it seems 
better to use this word only as the correlative 
of “guarantor,” and to spell the verb, and 
also the name of the contract, “guaranty.” 


GUARENTIGIO. In Spanish law. <A 
written authorization to a court to enforce 
the performance of an agreement in the sime 
manner ag if it had been decreed upon regu- 
lar legal proceedings. 


GUARANTOR. He who makes a guar- 
anty. 


GUARANTY, o. Toundertake collater- 
ally to answer for the payment of another's 
debt or the performance of another's duty, 
liability, or obligation; to assume the respon- 
sibility of a guarantor; to warrant. See 
GUARANTY, 7. 

GUARANTY, n. A promise to answer 
for the payment of some debt, or the per- 
formance of some duty, in case of the failure 

| of anotuer person, who, in the first instance, 


GUARANTY 


{s Hable to such payment or performance. 
Fell, Guar. 1; 3 Kent, Comm. 121; 6ON. Y. 
458, 1 Miles, 277. 

A guaranty is an undertuking by one per- 
son to be answerable for the payment of some 
debt, or the due performance of some con- 
tract or duty, by another person, who linself 
remains liable to pay or perform the same. 
Story, Prom. Notes, § 457. 

A guaranty is a promise to answer for the | 
debt, default, or miscarriage of another per- 
son. Civil Code Cal. § 2787. 


A guaranty is a contract that some particular 
thing shall be done exactly as it is agrecd to be 
doue, whether it is to be dene by one person or an- 
other, and whether thera be a prior or principal 
contractor or not. 27 Coun. 81. 

The definition of a “guaranty,” by text-writers, 
is an nudertaking by one person that another shall 
perform his contract or fulfill Lis obligation, or 
that, if he does not, the guarantor will do it for 
him, A guarantor of a bill or note is said to be 
one who engages that the note shall be paid, but 
is not an indorser or surety. 72 Ill. 1% 

The terms “guaranty” and “suretyship” are 
sometimes used interchangeably; but they should 
not be confounded. The contract of a surety cor- 
responds with that of a guarantor in many re- 
spevts; yet important differences exist. The 
surety is bound with his principal as an original 
promisor. He isa debtor from the beginning, and 
must see that the debt is paid, and is held ordina- 
rily to know every default of his principal, and 
cannot protect himself by the mere indulgence of 
the creditor, nor by want of uotice of the default 
of the principal, however such indulgence or want 
of notice may in fact injure him. On the other 
hand, the contract of a guarantor is his own sep- 
arate contract. 1t is in the nature of a warranty 
by him that the thing guarantied to be done by | 
the principal shall be done, not merely an engage- | 
ment jointly with the principal to do the thing. 

| 
| 


The original contract of the principal is not his 
coutract, and he is not bound to tale notice of its 
non-performance. Therefore the creditor should 
give him notice; and it is universally held that, if 
the guarantor can prove that he has suffered dam- 
age by the failure to give such notice, he will be 
discharged to the extent of the damage thus sus- 
tained. It is not so withasurety. 32 Ind. 11; 2 
N.Y. 533. 

A guaranty relating to a future liability 
of the principal, under successive transac- 
tions, which either continue his liability, or 
from time to time renew it after it has been 
salisfied, is called a “continuing guaranty.” 
Civil Code Cal. § 2814. 


GUARANTY INSURANCE. A guar- 
anty or insurance against loss in case a per- 
son named shall make a designated default 
or be guilty of specified conduct. Itis usual- 
ly against the misconduct or dishonesty of 
an employee or oflicer, thouzh sometimes 
against the breach of a coutract. 9 Amer. 
& Eng. Ene. Law, 65. 


551 


GUARDIAN BY NATURE 


GUARDAGH. A state of wardship. 


GUARDIAN. A guardian is a person 
lawfully invested with the power, and charged 
with the duty, of faking care of the person 
and managing the property and rights of an- 
other person, who, for some peculiarity of 
status, or defect of age, understanding, or 
self-conirol, is considered incapable of ad- 
ministering his own affairs. 

A guardian is a person appointed to take 
care of the person or property of another. 
Civil Code Cal. § 236. 

One who legally has the care and manage 
ment of the person, or tlhe estate, or both, of 
a child during its minority. Reeve, Dom. 
Rel. 311. 

This term might be appropriately used to 
designate the person charged with the care 
and control of idiots, lunaties, habitual 
drunkards, spendthrifts, and the like; but 
such person is, under many of the statutory 
systems authorizing the appointment, styled 
“committee,” and in common usage the 
name “guardian” is applied only to one hav- 
iny the care and management of a minor. 

The name “curator” is given in some of 
the states to a person having the control of 
a minor's estate, without that of his person; 
and this is also the usage of the civil law. 

A testamentary guardian is one appointed 
by the deed or last will of the child’s father; 
while a guardian dy election is one chosen by 
the infant himself, In a case where he would 
otherwise be without one. 


GUARDIAN AD LITEM. A guardian 
appointed by a court of justice to prosecute 
or defend for an infant in any suit to which 
he may be a party. 2 Steph. Comm. 342, 
Most commonly appointed for infant defend- 
anis,; infant plaintiffs generally suing by 
next Friend. ‘This kind of guardian has no 
rigiit to interfere with the infant's person or 
property. 2 Steph, Comm. 343. 


GUARDIAN BY APPOINTMENT 
OF COURT. The most important species 
of guardian in modern law, having custody 
of the infant until the attainment of full 
age. It hasin England in a manner super- 
seded the guardian in socage, and in the 
Uniled States the guardian by nature also, 
The appointment is made by a court of chan- 


cery, or probate or orphins’ court. 2 Steph. 
Conm, 841; 2 Kent, Comm. 226. 
GUARDIAN BY NATURE. The fa- 


ther, and, on his death, the mother, of a child. 
1 B). Comm. 461; 2 Kent, Comm. 219. This 
guardianship extends only to the custody of 


GUARDIAN BY STATUTE i) 


the person of the child to the age of twenty- 
one years. Sometimes called “natural guard- 
jan,” but this is rather a popular than a tech- 
nical mode of expression. 2 Steph, Comm. 337. 


GUARDIAN BY STATUTE. A guara- 
jan appointed for a child by the deed or last 
will of the father, and who has the custody 
both of his person and estate until the attain- 
ment of full age. This kind of guardian- 
ship is founded on the statute of 12 Car. Il, 
e. 24, and has been pretty extensively adopted 
in this country, 1 Bl. Comm. 462; 2 Steph. 
Comm, 339. 340; 2 Kent, Comm. 224-226. 


GUARDIAN DE LD’EGLISEH. A 
chureh- warden. 


GUARDIAN DE L°ESTEMARY, The 
warden of the stamnaries or mines in Corn- 
wall, etc. 


GUARDIAN FOR NURTURE. The 
father, or, at his decease, the mother, of a 
ehild. This kind of guardianship extends 
only to the person, and determines when the 
infant arrives at the age of fourteen. 2 Kent, 
Comm. 221; 1 Bl. Comm. 461; 2 Steph. Comm. 
338. 

GUARDIAN IN CHIVALRY. In the 
tenure by knight’s service, in the feudal law, 
if the heir of the feud was under the age of 
twenty-one, being a male, or fourteen, being 
a female, the lord was entitled toe the ward- 
ship (and marriage) of the heir, and was 
called the “guardian in chivalry.” This 
wardship cousisted in having the custody of 
the body and lands of such heir, without any 
account of the profits. 2 Bl, Comm. 67. 


GUARDIAN IN SOCAGH. Atthe 
common law, this was a species of guardian 
who had the custody of lands coming to the 
infant by descent, as also of the infant’s per- 
son, until the latter reached the age of four- 
teen Such guardian was always “the next 
of kin to whom the inheritance cannot pos- 
silly descend.” -1 Bl. Comm. 461; 2 Steph. 
Comm, 333. 


GUARDIAN OF THE PEACH A 
warden or conservator of the peace, 


GUARDIAN OF THE POOR. In 
English law. A person elected by the rate- 
payers of a parish to have the charge and 
mnanagement of the parish work-house or 
union. Sea 3 Steph. Comm. 208, 215. 


GUARDIAN OF THE SPIRITUAL- 
ITEES. The person to whom the spiritual 
jurisdiction of any diovess is committed dur- 
ing the vacancy of the see. 


52 GUIDAGE 


GUARDIAN OF THE TEMPORAL- 
ITIES. The person to whose custudy a va- 
cant see or abbey was committed by the crown. 


GUARDIAN, or WARDEN, OF THE 
CINQUE PORTS. A magistrate who has 
the jurisdiction of the ports or havens which 
are called the “Cinque Ports,” (g. 0.) This 
office was first created in England, in imita- 
tion of the Roman policy, to strengthen the 
séa-coasts aguinst enemies, ete. 

GUARDIANSHIP. The office, duty, or 


authority of a guardian, Also the relation 
subsisting bebween guardian and ward. 


GUARDIANUS. A guardian, warden, 
or keeper. Spelman. 


GUARNIMENTUM. In old European 
law. <A provision of necessary things. Spel- 
man. A furnishing or garnishment. 


GUASTALD. One who had the custody 
of the royal mansions, 


GUBERNATOR. Lat. In lioman law. 
The pilot or steersman of a ship. 


GUERPI, GUERPY. L. Fr. Aban- 
doned; left; deserted. Britt. c. 33. 
GUERRA, GUERRE. War. Spelman. 


GUERILLA PARTY. In military law. 
An independent body of marauders or armed 
men, not regularly or organically connected 
with the armies of ejther belligerent, who 
carry on a species of irregular war, chiefly by 
depredation and massacre. 


GUEST. A traveler who lodges at an 
inn or tavern with the consent of the keeper. 
Bac. Abr. “Inns,” C, 5; 8 Coke, 32, 

A guest, as distinguished from a boarder, 
is bound for nu stipulated time. He stops 
at the inn for as short or as long time as he 
pleases, paying, while he remains, the cus- 
tomary charge. 24 How. Pr. 62. 


GUEST-TAKER. An agister; one who 
took cattle in to feed in the royal forests. 
Cowell. 


GUET. In old French law. 
Ord. Mar. liv. 4, tit. 6. 


GUIA. In§panish law. Arightof way 
for narrow earts. White, New Recop. 1. 2, 
ce. 6, § 1. 


GUIDAGE. In old English law. That 
which was given for safe conduct through a 
strange territory, or another's territory. 
Cowell. 

The office of guiding of travelers through 
dangerous and unknown ways. 2 Inst. 526. 


Watch. 


GUIDE-PLATE 5 


GUIDE-PLATE. An iron or steel plate 
to be altached to a rail for the purpose of 
guiding to their place on the rail wheels 
thrown off the track. Dub. St. Mass. 1882, 
p. 1291. 


GUIDON DE LA MER. The name of 
atreatise on maritime law, by an unknown 
author, supposed to have been written about 
1671 at Rouen, and considered, in continental 
Europe, as a work of high authority. 


GUILD. A voluntary association of per- 
sons pursuing the same trade, art, profession, 
or business, such as printers, goldsmiths, 
wocl merecrants. ete., unitel under a distinct 
organization of their own, analegous to that 
of a corvoration, regulating the affairs of 
their trads or business by their own laws 
ani rules, and aiming, by co-operation and 
organization, te protect and promote the in- 
terests of their common vocation. In me- 
dieyal history these fraternities or guilds 
played an important part in the government 
of some states; as at Florence, in the thir- 
teenth aad following centuries, where they 
chose the council of government of the city. 
But with the growth of cities and the ad- 
vance in the organization of municipal gov- 
ernment}, fheir importance and prestige has 
declined. The place of meeting of a guild, 
or association of guilds, was called the “Guild- 
hall.” The word is said to be derived from 
the Anglo-Saxca “gild” or “geld,” a tax or 
tribute, because each member of the society 
was required to pay a tax Lowards its support. 


GUILD RENTS. Rents payable to the 
crown by any guilu, or such as formerly be- 
longed to religious guilds, and came to the 
crown at the general dissolution of the mon- 
asteries, Tomlins. 


GUILEHALL. The hall or place of 
meeting of a guéid, or gild. 

The place of meeting of a municipal cor- 
poration. 3 Steph. Comm. 173, note. The 
mercantils or commercial gild/s of the Saxons 
are supposea to have given rise to the pres- 
ent municipal ccrporations of England, whose 
place of meeting is still called the “Guildhall.” 


GUILDHALL SITTINGS. The sit- 
tings held in the Guildhail of the city of Lon- 
don for city of London causes. 


GUiLT. Incriminal law. That quality 
which imparts criminality toa motive or act, 
and renders the person amenable to punish- 
ment by the law. 

That disposition to violate the law which 
has manifested itself by some act already 


53 GYVES 


done. The opposite of innocence. See Ruth. 
Inst. b. 1, c. 18, § 10. 


GUILTY. Having committed a crime or 
tort; the word used by a prisoner in plead- 
ing to an indictment when he eonfesses the 
crime of which he is charged, and by the jury 
in convicting. 


GUINEA. A coin formerly issned by 
the English mint, but all these coins were 
called in in the time of Wm. ITV. The word 
now means only thesum of £1. Is., in which 
denomination the fees of counsel are always 
given. 


GULE OF AUGUST. The first of Au- 
gust, being the day of St. Peter ad VY incuia. 


GULES, The heraldic name of the color 
usually called “red.” The word is derived 
from the Arabic word “guile,” a rose, and 
was probably introduced by the Crusaders. 
Gules is denoted in engravings by numerous 
perpendicular lines. Heralds who blazoned 
by planets and jewels called it “Mars,” and 
“ruby.” Wharton. 


GURGITES. 


GUTI. Jutes; one of the three nations 
who migrated from Germany fo Britain at 
an early period. According to Spelman, they 
established themselves chiefly in Kent and 
the Isle of Wight. 


GUTTER. The diminutive of a sewer. 
Callis, Sew. (80,) 100. 


GWABR MERCHED. Maid’s fee. A 
British word signifying a customary fine 
payable to lords of some manors on marriage 
of the tenant’s daughters, or otherwise on 
their committing incontinence. Cowell. 


GWALSTOW. A place of execution. 
Jacob. 


GWAYE. Wail, or waived; that which 
has been stolen and afterwards dropped in 
the highway for fear of adiscovery. Cowell. 


Wears. Jacob. 


GYLPUT. The name of a court which 
was held every three weeks in the liberty or 
hundred of Pathbew in Warwick. Jacob. 


GYLTWITE. Sax. Compensation for 
fraud or trespass. Cowell. 


GYNARCY, or GYNACOCRACY. 
Government by a woman; a state in which 
women are legally capable of the supreme 
command; e. g., in Great Britain and Spain. 


GYROVAGI. Wandering monks. 
GYVES. Fetters or shackles for the legs. 


554 


HABEAS CORPUS, ETC. 


HH. 


H. This letter, as an abbreviation, stands 
for Tlenry (a king of that name) in the cita- 
tion of English statutes. Inthe Year Looks, 
itis used as an abbreviation for Hilary term. 


H. A. Anabbreviation for hoc anno, this 
year, in this year. 


H.B. An abbreviation for house bill, 
ft. é., a bill in the house of representatives, 
as distinguished from a senate bill. 


H.C. An abbreviation for house of com- 
mons, or for habeas corpus. 


H.L. Anabbreviation for house of lords. 


H.R. An abbreviation for house of rep- 
resentitives, 


H. T. An abbreviation for hoc titulo, 
this title, under this title; used in references 
to buoks. 


H. V. An abbreviation for hee verbo or 
hae voce, this ward, under this word; used 
in references to dictionaries and other works 
alphabetically arranged. 


HABE, or HAVE. Lat. A form of the 
salutatory expression “Ave,” (hail,) in the 
titles of the constitutions of the Theodosian 
and Justinianean Codes. Calvin.; Spelman. 


HABEAS CORPORA JURATORUM. 
A writ commanding the sheriff to bring up 
the persons of jurors, and, if need were, to 
distrauin tiem of their lands and goods, in 
order to insure or compel their attendance in 
court on the day of trialof a cause. Itissued 
from the Comnion Pleas, and served the same 
purpose as a distringas juratores in the 
King’s Bench. It was abolished by the C. 
L. P. Act, 1852, § 104. Brown. 


HABEAS CORPUS. (You have the 
body.) The name given toa variety of writs, 


(of which these were anciently the emphatic 
words,) having for their object to bring a 
party before a court or judge. In common 
usage, and whenever these words are used 
alone, they are understood to mean the he- 
beas corpus ad subjiciendum, (gq. 0.) 


HABEAS CORPUS ACT. The En- 
glish statute of 31 Car. IL. c. 2, is the origi- 
nal and prominent habeas corpie act. It 
was amended and supplemented by St. 56 
Geo. II. c. 100. And similar statutes have 
been enacted in all the United States. This 


act is justly regarded as the greaf constitu. 
tional guaranty of personal liberty. 


HABEAS CORPUS AD DELIBE- 
RANDUM ET RECIPIENDUM. A writ 
which is issued to remove, for trial, & person 
confined in one county to the county or place 
where the offense of which he is accused was 
commiited. Bac. Abr. “Habeas Corpus,” 
A; 1 Chit. Crim. Law, 182. Thus, it has 
been granted to remove a person in custody 
for contempt to take his trial for perjury in 
another county. 1 Tyrw. 185. 


HABEAS CORPUS AD FACIENDUM 
ET RECIPIENDUM. A wrib issuing in 
civil cases, to remove the cause, as also the 
body of the defendant, from an inferior court 
to a superior court having jurisdiction, there 
to be disposed of. It is also called “Aabeas 
corpus cum causa.” 


HABEBAS CORPUS AD PROSE- 
QUENDUM. A writ which issues when it 
is necessary to remove a prisoner in order to 
prosecute in the proper jurisdiction wherein 
the fact was cominitted. 3 Bi, Comm. 130 


HABEAS CCRPUS AD RESPONDE- 
WUM. A writ which is usually employed in 
civil cases to remove a person out of the cus- 
tody of one court into that of another, in or- 
der that he may be sued and answer the ac- 
tion in the latter. 2 Sell. Pr. 259; 2 Mod, 
198; 3 Bi. Comm. 129; 1 Tidd, Pr. 800. 


HABEAS CORPUS AD SATISFACI- 
ENDUM. In English practice. <A writ 
which issues when a prisoner has had judg- 
ment against him in an action, and the plain- 
tiff is desirous to bring him up to some supe- 
rior court, to charge him with process of exe- 
eution, 3 Bl. Comm, 129, 130; 3 Steph. 
Comm. 693; 1 Tidd, Pr. 350. 


HABEAS CORPUS AD SUBJICIEN- 
DUM. In practice. <A writ directed to the 
person detaining another, and commanding 
him to produce the body of the prisoner, (or 
person detained,) with the day and cause of 
his caption and detention, ad faciendum, 
subjiciendum et recipiendum, to do, submit 
to, and receive whaisoever the judge or court 
awarding the writ shall consider in that be 
half. 3 Bl. Comm. 151; 3 Steph. Comm. 
695. This is the well-known remedy for de- 
liverance from illegal confinement, called by 


HABEAS CORPUS, ETC. 


Sir William Blackstone the most celebrated 
writ in the English law, and the great and 
efficacious writ in all manner of illegal con- 
finement. 3 Bl. Comm. 129, 


HABEAS CORPUS AD TESTIFI- 
CANDUM. In practice. A writ to bring 
a witness into court, when he is in custody 
at the time of a trial, commanding the sher- 
iff to have his body before the court, to tes- 
tify in the cause. 3 Bl. Comm. 180; 2 Tidd, 
Pr. 809. 


HABEAS CORPUS CUM CAUSA. | 


{You have the body, with the cause.) In 
practice. Another name for the writ of ha- 
beus corpus ad faciendum et recipiendum, 
(g. 0) 1 Tidd, Pr. 348, 349, 


Habemus optimum testem, confiten- 
tem reum. 1 Phil. Ey. 897. We have the 
best witness, — a confessing defendant. 
“What is tuken pro confesso is taken as in- 
dubitable truth. The plea of guilty by the 
party accused shuts out all further inquiry. 
Habemus confitentem reum is demonstra- 
tion, unless indirect motives can be assigned 
to it.” 2 Hagg. Eccl. 815. 


HABENDUM. Im conveyancing. The 
clause usually following the granting part of 
the premises of a deed, which defines the ex- 
tent of the ownership in the thing granted to 


beheld and enjoyed by the grantee. 3 Washb. | 


Real Prop. 437. 


HABENDUM ET TENENDUM. In 
old conveyancing. To have and to hold. 
Formal words in deeds of land from a very 
early period. Bract. tol, 178. 


HABENTES HOMINES. In old En- 
glishlaw. Rich men; literally, having men. 
The same with fasiing-men, (g.v.) Cowell. 


HABENTIA. Riches. 


100. 


HABERE. Lat. In thecivil law. To 
have. Sometimes distinguished from tenere, 
(to hold,) and possidere, (to possess;) habere 
referring to the right, tenere to the fact, and 
possidere to both. Calvin, 


Mon, Angl. t. 1, 


HABERE FACIAS POSSESSIONEM. 
That you cause to have possession. The 
name of the process commonly resorted to by 
the successful party in an action of ejeect- 
ment. for the purpose of being placed by the 
sheriff in the actual possession of the land 
recovered. It is commonly termed simply 
“habere facias,” or “hab. fa.” 


555 


HABITANCY 


HABERE FACTIAS SHISINAM. That 
you cause to have seisin. The writ of exe- 
cution in real actions, directing the sheriff 
to canse the demandant to have seisin of the 
lands recovered. It was the proper process 
for giving seisin of a freehold, as distin- 


| guished from a chattel interest in lands. 


HABERE FACIAS VISUM, That you 
cause to have a view. <A writ to cause the 
sheriff to take a view of lands or tenements, 


HABERE LICERE. Lat. In Re- 
man law, To allow [one] to have [posses- 
sion.] This phrase denoted the duty of the 
seller of property to allow the purcliaser to 
have the possession and enjoyment. Fora 
breach of this duty, an aetio ex empto might 
be maintained. 


HABERGEON. A diminutive of hau- 
berk, a short coat of mail without sleeves. 
Blount. 


HABERJECTS. A cloth of a mixed color. 
Magna Charta, c. 26. 


HABETO TIBI RES TUAS. Have or 
take your effects to yourself. Oneof Lhe old 
Roman forms of divorcing a wife. Calvin. 


HABILIS. Lat. Fit; suitable; active; 
useful, (of a servant.) Proved; authentic, 
(of Book of Saints.) Fixed; stable, (of au- 
thority of the king.) Du Cange. 


HABIT. A disposition or condition of 
the body or mind acquired by custom or a 
usual repetition of the same act or function. 


HABIT AND REPUTE. Bythelawof 
Scotland, marriage may be established by 
“habit and repute” where the parties cohabit 
and are at the same time held and reputed as 
man and wife. See Bell. The same rule 
obtains in some of the United States, 


HABITABLE REPAIR. A covenant 
by a lessee to “put the premises into habit- 
able repair” binds him to put them into such 
a state that they may be occupied, not only 
with safety, but with reasonable comfort, 
for the purposes for which they are taken. 2 
Moody & R. 186. 


HABITANCY. It is dificult to give an 
exact delinition of “habitancy.” In general 
terms, one may be designated as an “inhab- 
itant” of that place which constitutes the 
principal seat of his residence, of his busi- 
ness, pursuits, connections, attachments, 
and of his political and municipal relations. 
The term, therefore, embraces the fact of 
residence at a place, together with the intent 


HABITANT 556 HAREDES NECESSARII 


fo regard it and make it a home. The act HACKNEY CARRIAGES. Carriages 
and intent must coneur. 17 Pick. 231. plying for hire in the street. The driver is 


Niable for nesli tly losing baggage. 
HABITANT. Fr. In French and Ca hee: tani Ng DSBEAgS 


nadian law. <A resident tenant; a settler; a 
tenant who kept hearth and home on the 
seigniory. 


HABITATIO. In the éivil law. The 
right of dwelling; the right of free residence 
in another’s house. Inst. 2, 5; Dig. 7, 8. 


HADBOTE. In Saxon law. A recom- 
pense or satisfaction for the violation of holy 
orders, or violence offered to persons in holy 
orders. Cowell; Blount. 


HADD. In Hindu law. A bonndary or 
limit, A statutory punishment delined by 
law, and not arbitrary. Mozley & Whitley 

HABITATION. fn the civil law. 
The right of a person to live in the honse of 
another without prejudice to the property. 
It differed from a usufruct, in this: that the 
usutructuary might apply the house to any 
purpose, as of astore or manufactory; where. 
as Lhe party having the right of habitation 
could only use it for the residence of himself 
and family. 1 Browne, Civil Law, 184, 

In estates. A dwelling-house; a home- 
stall. 2 Bl, Comm. 4; 4 Bl. Comm. 220. 


HADERUNGA. Hatred; ill will; preju- 
dice, or partiality. Spelman; Cowell. 


HADGONEL. A tax or mulet. Jacob, 


HAC EST CONVENTIO. Lat. This 
| isan agreement. Words with which agree- 
ments anciently commenced. Yearb. H. 6 
Edw, II. 191. 


HAC EST FINALIS CONCORDIA, 
L. Lat. This is the final agreement. The 
words with which the foot of a fine com- 
menced. 2 Bl. Comm. 351. 


HEREDA. In Gothic law. A tribunal 
answering to the English court-leet. 


HAREDE ABDUCTO. An ancient writ 
that lay for the lord, who, haying by right 
the wardship of his tenant under age, could 
not obtain his person, the same being carried 
away by another person. Old Nat. Brev. 93, 


HABITUAL CRIMINALS ACT. The 
statute 32 & 33 Viet. c. 99. By this act pow- 
er was given to apprehend on suspicion con- 
victed persons holding license under the pe- 
nal servitude acts, 1853, 1857, and 1864. The 
act was repealed and replaced by the preven- 
tion of crimes act, 1871, (84 & 35 Vict. e. 
112.) 


HABITUAL DRUNKARD. A person 
given to ebriety or the excessive use of intoxi- HEREDE DELIBERANDO ALTERI 
cating drink, who has lost the power or the | QUI HABET CUSTODIUM TERRA 
will, by frequent indulgence, to control bis | An ancient writ, directed to the sheriff, to 
appetite for it. 18 Pa. St. 172. require one that had the body of an heir, be- 
One who has the habit of indulging in intoxicat- | ing in ward, to deliver him to the person 


ing liquors so firmly fixed that he becomes intoxi- | whose ward he was by reason of his land. 
nated as often as the temptation is presented by Reg. Orig. 161 
vos . . 


his being in the vicinity where liquors are sold is 
HMREDE RAPTO. An ancient writ 


an “babitual drunkard,” within the meaning of 

i . 85 Mich, 210. ; : 
ae een, 8S che that lay forthe ravishment of the lord’s ward. 
Reg. Orig. 163. 


{n England, it is defined by the habitual drunk- 
ards’ act, 1879, (42 & 43 Vict. o. 19,) which author- 

izes confinement in a retreat, upon the party’s own : 

application, as “a person who, not being cetenant Heeredem Deus facit, non homo. God 
to any jurisdiction in lunacy, is, notwithstanding, | Makes the heir, not man, Co. Litt. 76. 

by reason of habitual intemperate drinking of in- 
toxicating liquor, at times dangerous to himself, 
or herself, or others, or incapable of managing 
himself or herself, or his or her affairs. ” 


HASREDES. Lat. Im the civil law. 
Heirs. The plural of heres, (q. v.) 


HAEREDES EXTRANEI. In the civil 
law. Extraneous, strange, or foreign heirs; 
those who were not subject to the power of 
the testator. Inst. 2, 19, 3. 


HABLE. L. Fr. In old English law, 
A port or harber; a station for ships. St. 27 
Hen. VI. c. 3. 


HACIENDA. In Spanish law. The 
public domain; the royal estate; the aggre- 
gate wealth of the state. The science of ad- 
ministering the national wealth; public econ- 
omy. Also an estate or farm belonging to a 
private person. 


HEREDES NECEHSSARIT. In Roman 
law. Necessary heirs; those who, being 
named heirs in the will, had no election 
whether to accept or decline the inheritance, 
but were compelled to take it. This was the 
case with a slaye who was made heir. Upon 


HA#REDES PROXIMI 


the testator’s death, he at once became free, 
but was also obliged fo take the succession. 


BHEREDES PROXIMI. Nearest or 
next heirs. The children or descendants of 
the deceased. 


LEREDES REMOTIORES. More re- 
mote Seirs. The kinsmen other than chil- 
dren or descendants. 


HMREDES SUI ET NECESSARITI. 
In Roman law. Own and necessary heirs; 
i. ¢., tha lineal descendants of the estate-leay- 
er. They were called “necessary” heirs, be- 
cause it was the law that made them heirs, 
and not the choice of either the decedent or 
themselves. But since this wus also true of 
slaves (when named “heirs” in the will) the 
former class were designated “szué et neecs- 
sari,” by wey of distinction, the word “sut” 
denotizg that the necessity arose from their 
Telationship te the decedent. Mackslé. Rom. 
Law, § 733. 


HAREDIPETSL, Lat. In old English 
law. A. seeker of an inheritence; hence, the 
next heir te lands. 


Heredipets suo propinquo vel extra- 
neo periculoso sane custodi nullus com- 
mittatar. To the next heir, whether a re- 
lation or a stranver, certainly a dangerous 
guardian, les noone be committed. Co. Litt. 
88d. 


HASREDITAS. In Roman law. The 
hereditas was a universal succession by law 
to any deceased person, whether such person 
bad died testate or intestate, and whether in 
trust (ex fideicommisso) for another or not. 
The tike succession according to Preetorian 
law was bonorum possessto. The hareditas 
was called “jacens,” until the heres took it 
up, t. e., made his aditio hereditatis; and 
such heres, if a sus hwres, had the right to 
abstain, (petesics abstinendi,) and, if an ex- 
traneus haves, had the right to consider 
whether he would accept or decline, (potestas 
deliterands,) the reason for this precaution 
being that (prior te Justinian’s enactment to 
the contvary} a heres after his editio was 
liable to the full extent of the debts of the 
decassz3c person, and could have no relief 
thecefrom, except in the case of a damnum 
emcergens or damnosaz haereditas, i. e, an 
hereditus which disclosed (after the aditio) 
sore enormous unsuspected liability. Brown, 

In old English law. An estate trans- 
missible by descent; an inheritance. Co. 
Litt. 9. 


55? tatREDUM APPELLATIONE, ETC. 


Hereditas, alia corporalis, alia incor- 
poralis; corporalis est, quz tangi potest 
et videri; incorporalis que tangi non po- 
test nec videri. Co. Litt. 9. An inherit- 
ance is either corporeal or incorporeal. Cor- 
poreal is that which can be touched and seen; 
incorporeal, that which can neither be touched 
nor seen. 


HEREDITAS DAMNOSA. Aburden- 
some inheritance. See DamNosaA HareEep- 
ITAS, 


Heereditas est successio in universum 
jus quod defunctus habuerit. Co. Litt. 
237. Inheritance is the succession to every 
right which the deceased had. 


HAMREDITAS JACENS. In the civil 
law. A vacant inheritance. So long as no 
one had acquired the inheritance, if was 
termed “Aereditas jacens;” and this, by a 
legal fiction, represented the person of the 
decedent. Mackeld. Rom. Law, § 737. 

The estate of a person deceased, where the 


owner left no heirs or legatee to take it, 


culled also “caduca;” an escheated estate. 
Cod. 10, 10, 1; 4 Kent, Comm. 425. 

In English law. Anestate in abeyance; 
that is, atter Lhe ancestor’s death, and before 
assumption of heir. Co. Litt. 3426. An in- 
heritance without legal owner, and therefore 
open to the first occupant. 2 BI. Comm. 259. 


H#REDITAS LUCTUOSA, In the 
civil law. A sad or mournful inheritance or 
succession; as that of a parent to the estate 
of a child, which was regarded as disturbing 
the natural order of mortality, (turbate ordine 
mortalitatis.) Cod. 6, 25,9; 4 Kent, Comm. 
397. 


Heereditas nihil aliud est, quam suc- 
cessio in universum jus, quod defunctus 
habuerit. The right of inheritance is noth- 
ing else than the faculty of succeeding to all 
the rights of the deceased. Jig. 50, 17, 62. 


Hereditas nunquam ascendit. An in- 
heritanee never ascends. Glanv. lib. 7, ¢. 1; 
2 Bl.Comm,. 211. A maxim of feudal origin, 
and which invariably prevailed in the law of 
England down to the passage of the statute 
3&4 Wm. IV. c. 106, § 6, by which it was 
abrogated. 1 Stepl.Comm. 378. See Broom, 
Max, 527, 528. 


Heredum appellatione veniunt here- 
des heredum in infinitum. By the title 
of heirs, come the heirs of heirs to infinity. 
Co. Litt. 9. 


— 


HARES 558 


HARES. In Roman law. The heir, 
or universal successor in the event of death. 
The heir is he who actively or passively suc- 
ceeds to the entire property of the estate- 
leaver. He is not only the successor to the 
Tights and claims, but also to the estate-leav- 
er’s debts, und in relation to his estate is to 
be regarded as the identical person of the es- 
tate-leaver, inasmuch as he represents him 
in all his active and passive relations to his 
estate. Mackeld. Rom. Law, § 651. 


It should be remarked that the office, powers, 
aud duties of the Awres, in Roman law, were 
much more closely assimilated to those of a mad- 
erm executor than to those of an heir at law. 
Hence “heir” is not at all an accurate translation 
of “hares,” unless it be understood in a special, 
technical sense. 

In common law. An heir; he to whom 
lands, tenements, or hereditaments by the 
act of God and right of blood do descend, of 
some estate of inheritanve. Co. Litt. 7b. 


H@RES ASTRARIUS. Inold English 
law. An heir in actual possession. 


HARES DE FACTO. In old English 
law. Heir from fact; that is, from the deed 
er act of his ancestor, without or against 
right. 
from an heir de ju7e, or by law. 


Heres est alter ipse, et filius est pars 
patris. An heir is another self, and a son 
ig part of the father. 3 Coke, 120, 


Heeres est aut jure propriectatis aut 
jure representationis. An heir is either 
by right uf property, or right of representa- 
tion. 3 Coke, 40d. 


Tiveres est eadem persona cum ante- 
cessore. An heir is the same person with 
his ancestor. Co. Litt. 22; Braneb, Prine. 
See Nov. 48, c. 1, § 1. 


Heeres est nomen collectivum. “Tleir” 
is a collective name or noun. 1 Vent. 215, 


Heres est nomen juris; filius est no- 
men nature. “Heir” is a name or term of 
law; “son” is a name of nature. Dac. Max. 
52, in reg. 11. 


Heres est pars antecessoris. An heir 
is a part of the ancestor. So said because 
the ancestor, during his life, bears in his 
body (in judgment of law) all his heirs. 


HERES FX ASSE. In the civil law. 
An heir to the whole estate; a sole heir. Inst. 
2, 23, 9. 


HARES EXTRAWNEUS. In the civil 
law. A strange or foreign heir; one who 


An heir in fact, as distinguished | 


HERES NON TENETUR, ETC. 


was not subject to the power of the testator, 
or person who made him heir. Qui testa- 
toris jurét subjecti non sunt, extranet heredes 
appeliantur. Inst. 2, 19, 3. 


H&RES FACTUS. In the civil law. 
An heir made by will; a testamentary heir; 
the person created universal successor by 
will. Story, Confl. Laws, § 507; 3B]. Comm, 
224. Otherwise called “heres ea testamen- 
to,” and “Jueves institutus.” Inst. 2, 9, 7; 
Id. 2, 14. 


H#RES FIDEICOMMISSARIUS. 
Tn the civil law. The person fur whose ben- 
efit an estale was given to another (termed 
“heres fiducitarius,” (q.v.) by will. Inst. 
2, 23, 6, 7, 9. Answering nearly to the ces- 
tui que trust of the English law. 


HARES FIDUCIARIUS. A fiduciary 
heir, or heir in trust; a person constituted 
heir by will, in trust for the benefit of an- 
other, called the “/fideicommissarius.” 


Heeres heeredis mei est meus heres. 
The heir of my heir is my heir, 


HARES LEGITIMUS. A lawful heir; 
one pointed out as such by the marriage of 
his parents. 


Heres legitimus est quem nuptie de- 
monstrant. He isa lawful heir whom mar- 
riage points out as such; who is born in wed- 
lock. Co. Litt. 70; Bract. fol. 88; Fleta, 
lib. 6, ¢. 1; Broom, Max. 515. 


Heeres minor uno et viginti annis non 
respondebit, nisi in casu dotis. Moore, 
348. An heir under twenty-one years of 
age is not answerable, except in the matter 
of dower. 


HARES NATUS. Inthecivillaw. An 
heir born; one born heir, as distinguished 
from one made heir, (heres factus, q. v.;) 
an heir at law, or by intestacy, (@b intestato ;) 
the next of kin by bloud, in cases of intestacy. 
Story, Conil. Laws, § 507; 3 Bl. Comm. 224. 


HARES NECESSARIUS. Inthecivil 
law. <A necessary orcompulsory heir. This 
Name was given to the heir when, being a 
slave, he was named “heir” in the testament, 
because on the death of the testator, whether 
he would or not, he at once became free, and 
was compelled toussume the heirship. Inst. 
2, 19; 1, 


Heres non tenetur in Anglia ad deb- 
ita antecessoris reddenda, nisi per an- 
tecessorem ad hoe fuerit obligatus, pre- 


| terquam debita regis tantum. Coa. Litt. 


HARES RECTUS 


386. In England, the heir is not bound to | gear, and bring the same Home again. 


pay his ancestor’s debts, unless he be bound 
to it by the ancestor, except debts due to the 
king. But now, by 3 & 4 Wm. lV. c. 104, 
he is liable, 


HARES RECTUS. Inold English law. 
Ariglhtheir. Fleta, lib. 6, c. 1, § 11. 


EHRERES SUUS. In the civil law. A 
man’s ez heir; a decedent’s proper or nat- 
ural heir, This name waa given to the 
lineal descendants of the deceased. Inst, 3, 
1, 4-4. 


HARETARSE. In old English law. To 
give aright of inheritance, or make the do- 
nation hereditary to the grantee and his 
heirs. Cowell. 


HARETICO COMBURENDO. The 
atatute 2 Hen. TV. c. 15, de heretico combu- 
rendo, was the first penal law enacted against 
heresy, and imposed the penalty of death by 
burning against all heretics who relapsed or 
who refused to abjure their opinions, Il was 
repealed by the statute 29 Car. IL. ¢. o 
Brown. 
for the purpose indicated. 


HAFNE. A haven or port. Cowell. 


HAPHNE COURTS. Havencourts; 
courts anciently held in certain ports in Eng- 
land. Spelman. 


HAGA. A house in a city or borough. | 
Seott, 

HAGIA. A hedge. Mon. Angl. tom. 2, 
p. 273. 

HAGNE. A little hand-gun. St. 33 


Hen. VIII. e. 6. 


HAGNEBUT. <A hand-gun of a larger 
description than the lagne. St. 2 & 3 Edw. 
Vi.e. 14,4&5P.&M. c. 2. 


HAIA. A park inelosed. Cowell. 


HAIEBOTEH. In old English law. A 
permission or liberty to take thorns, etc., to 
make or repair hedges. Blount. 


HAILL. 
whole. 
in conveyances. 


In Seotch law. Whole; the 
* All and haill” are common words 
I Bell, App. Cas. 499. 


HAILWORKFOLE, {@. ¢., holywork- 
folk.) Those who, formerly held lands by 
the service of defending or repairing a church 
or monument. 


HAIMMALDARE. In old Scotch law. 
To seek restitution of one’s own goods and 


This was also the name of a writ | 


559 


HALF-SEAL 


Skene 
de Verb. Sign. 


HAIMSUCKEN. In Scotch Jaw. The 
crime of assaulting a person in hia own 
house, Bell. 


HAKETON, A military coat of defense, 


HALF-BLOOD. A term denoting the 
degree of relationship which exists between 
those who have the same father or tne same 
mother, but not both parents in eommon. 
See BROTHER. 


HALF-BROTHER, HALF-SISTER, 
Persons who have the same father, but dif- 
ferent mothers; or the same mother, but dif- 
ferent fathers. 


HALF-CENT. A copper coin of the 
United States, of the value of five mills, and 
of the weight of ninety-four grains. The 
coinage of these wus discontinued in 1857. 


HALF-DEFENSE. In common-law 
pleading. The technical name of the come 
mon clause at the commencement of a de 
fendant’s plea: “And the said defendant, by 
» his attorney, comes and defends the 
wrony, (or force,) and injury, when,” ete. 
Called “iaifdefense” from its abbreviated 
form. 


HALF-DIME. A silver (now nickel) 


| coin of the United States, of the value of tive 


cents. 


HALF-DOLLAR. A silver coin of the 
United States, of the value of Bity cents, or 
one-half the value of a dollar. 


HALF-HAGLE. A gold eoin of the 
United States, of the value of five dollars. 


HALF-ENDEAL. 
a thing. 


HALF-KINEG. In Saxon law. Hait- 
king, (semi-rex.) <A title given to the alder- 
men of all England. Crabb, Eng. Law, 28; 
Spelman. 


A moiety, or half of 


HALEF-MARK. A noble, or six shil- 
lings and eight pence in iinglish money, 


HALF-PROOF. Inihe civillaw. Proof 
by one witness, or a private instriment. 
Hallifax, Civil Law, b. 3. ¢. 9, ne. 25; 3 Bl. 
Comm, 370. Or prima facie proof, which 
yet was nob sufficient to found a sentence or 
decree. 


HALYF-SEAL. That which was former- 
ly used in the English chancery for sealing 
of commissions to delegates, upon any appeal 


HALF-TIMER 


to the court of delegates, either in ecclesias- 
tical or marine causes. 


HALF-TIMER. A child who, by the 
operation of the English factory and educa- 
tion acts, is employed for less than the full 
time in a factory or workshop, in order that 
he may attend some “recognized eflicient 
scliool.” See factory and workshop act, 1878, 
§ 23; elementary education act, 1876, § 11. 


HALF-TONGUE. A jury half of one 
tongue or nationality and half of another. 
See DE MrpieraTe Linev 2. 


HALF-YEAR. In legal cumputation, 
The period of one hundred and eighty-two 
days; the odd hours being rejected. Co. Litt, 
1856; Cro. Jae. 166; Yel. 100; 1 Steph. 
Comm. 265. 


HALIGEMOT. In Saxon law. The 
meeting of a hall, (conventws aule,) that is, 
a lord’s court; a court of a manor, or court- 
baron. Spelman. So called trom the hadi, 
where the tenants or freemen met, and jus- 
tice was administered. Crabb, Eng. Law, 
26. 


HALIMAS. In English law. The feast 
of All Saints, on the Ist of November; one 
of the eross-quarlers of the year, was com- 
puted from Halimas to Candlemas. Wharton, 


HALL. A building or room of consider- 
able size, used as a place for the meeting of 
public assemblies, conventions, courts, ete. 

In English law. A name given to many 
manor-houses because the magistrate’s court 
was held in the hall of his mansion; a chief 
mansion-house. Cowell. 


HALLAGE. In old Englishlaw. Afee 
or toll due for goods or merchandise vended 
inahall. Jacob. 

A toli due to the lord of a fair or market, 
for such commodities as were vended in the 
common hall of the place. Cowell; Blount. 


HATLAZCO. In Spanish law. The 
finding and taking possession of something 
which previously had no owner, and which 
thus becomes tle property of the first occu- 
pant. Las Partidas, 3, 5, 28; 5, 48, 49; 5, 
20, 50. 


HALLE-GHMOTE. Hall assembly. A 
species of court-baron. 


HALLUCINATION. In medical juris- 
prudence. <A species of mania; the percep- 
tion of objects which have no reality, or of 
sensations which have no corresponding ex- 


560 


HANAPER 


ternal cause, arising from disorder of the 
hervous system; delusion, Webster, 


HALMOTE. See HALLE-GuMOTE. 


HALYMOTE. A holy or ecclesiastical 
court. 

A court held in London before the lord 
msyor and sheriffs, for regulating the bakers, 

It was anciently held on Sanday next be- 
fore St. Thomas’ day, and therefore called 
the “holymoie,” or holy court. Cowell. 


HALYWERCFOLE. Sax. In old En- 
glish law. Tenants who held land by the 
service of repairing or defending a church or 
monument, whereby they were exempted from 
feudal and military services. 


HAMA. In old English law. A hook; 
an engine with which a house on fre is pulled 
down. Yel. 60. 

A piece of land, 


HAMBLING. Inforestlaw. The hox- 
ing or hock-sinewing of dogs; an old mode 
of laming or disabling dogs. ‘Termes de la 
Ley. 


HAMESECKEN. In Scotch law. The 
violent entering into a man’s house without 
license or against the peace, and the seeking 
and assaulling him there. Skene de Verb. 
Sign.; 2 Forb. Inst. 139. 

The crime of housebreaking or burglary. 
4 Bl. Comm. 2238, 


HAMFARKE. (Sax. From fem, a house.) 
In Saxon law. An assault made in a house; 
a breach of the peace in a private house. 


HAMLET. A small village; a part or 
member of a vill. It is the diminutive of 
“ham,” a village. Cowell. 


HAMMA. A close joining toa house; a 
croft; a little meadow. Cowell 


HAMMER. Metuaphorically, a forced 
sale or sale at public auction. “To bring to 
the hammer,” to put up for sale at auction. 
“Sold under the hammer,” sold by an ofticer 
ot the law or by an auctioneer. 


HAMSOCNE. Theright of security and 
privacy in a man’s house. Du Cange. The 
breach of this privilege by a foreible entry of 
a house is breach of the peace. Du Cange. 


HANAPER., A hamper or basket in 
which were kept the writs of the court of 
chaneery relating to the business of a sub- 
ject, and their returns. 3 BI. Comm. 49, 
According to others, the fees accruing on 


HANAPER-OFFICE 


writs, etc., were there kept. 
Cange. 


HANAPER-OFFICE. An office belong- 
ing to the common-law jurisdiction of the 
court of chancery, so called becanse all writs 
relating to the business of a subject, and 
their returns, were formerly kept in a ham- 
per, tn hanaperio. 5&6 Vict. c. 103. 


HAND. A measure of length equal to 
four inches, used in measuring the height of 
horses, A person's signature. 

In old English law. An oath. 


HAND DOWN. An appellate court is 
said to “hand down” its decision in a case, 
when the opinion is prepared and Sled for 
transmission to the court below. 


HAND-FASTING. Betrothment. 


HAND-GRITH. Peace or protection 
given by the king with his own hand. 


HAND MONEY. Money paid in hand 
to bind a bargain; earnest money. 


HANDBILL. A wrilten or printed no- 
tice displayed to inform those concerned of 
something to be done. 


HANDBOROW. InSaxonlaw. A hand 
pledge; a name given to the nine pledges in 
a decennary or friborg; the tenth or chief, 
being called “headborow.” (q. v.) So called 
as being an inferior pledge to the chief. 
Spelman. 


HANDHABEND. InSaxon law. One 
having a thing in his hand; that is, a thief 
found having the stolen goods in his posses- 
sion. Jurisdiction to try such thief. 


HANDSALE. Anciently, among all the 
northern nations, shaking of hands was held 
necessary to bind a bargain,—a custom still 
retained in verbal contracts. A sale thus 
made was called “handsale,” (venditio per 
mutuam manum complexrionem.) In pro- 
cess of time the same word was used to sig- 
nify the price or earnest which was given 
immediately after the shaking of hands, or 
iustead thereof. 2 Bl. Comm. 448. 


Spelman; Du 


HANDSEL. MHandsale, or earnest 
money. 
HANDWRITING. The chirography of 


a person; the cast or form of writing pecul- 
jar to a person, including the size, shape, 
and style of letters, tricks of penmanship, 
and whatever gives individuality to his writ- 
ing, distinguishing it from that of other per- 
sons. 

AM. DIOT, LAW—36 


561 


HANSE TOWNS 


Anything written by hand; an instrument 
written by the hand of a person, or a speci- 
men of his writing. 

Handwriting, considered under the law of 
evidence, includes not only the ordinary writ- 
ing of one able to write, but also writing 
done in a disguised hand, or in cipher, and a 
mark made by one able or unable to write. 
9 Amer. & Eng. Enc. Law, 264. 


HANG. Inold practice. To remain un- 
determined. “It has kuzg long enough; it 
is time it were made an end of.” Holt, C. 
J., 1 Show. 77. 

Thus, the present participle means pend- 
ing; during the pendency. “Jf the tenant 
alien, hanging the pracipe.” Co, Litt. 266a. 


HANGING. In criminallaw. Suspen- 
sion by the neck; the modeof capital punish- 
ment used in England from time immemo- 
rial, and generally adopted in the United 
States. 4 Bl. Comm. 403, 


HANGING IN CHAINS. Inatrocious 
cases it was at one time usual, in England, 
for the court to direct a murderer, after exe 
cution, to be hanged upon a gibbet in chains 
near the place where the murder was com- 
mitted, a practice quite contrary to the Mo- 
saic law. (Deut. xxi. 23.) Abolished by 4 
& 5 Win. TY. c. 26. Wharton. 


HANGMAN. An executioner. One 
who executes condemned criminals by hang- 
ing, 

HANGWITE. In Saxon law. A fine 
for illegal hanging of a thief, or for allowing 
him to escape. Immunity from such fine, 
Du Cange. 


HANIG. Customary labor. 


HAWNSE. An alliance or confederation 
among merchants or cities, for the good or- 
dering and protection of the commerce of its 
members. Animposition upon merchandise. 
Du Cange. 


HANSE TOWNS, LAWS OF THE. 
The maritime ordinances of the Hanseatic 
towns, first published in German at Lubeck, 
in 1597, and in May, 1614, revised and en- 
larged. 


HANSE TOWNS. The collective name 
of certain German cities, including Lubeck, 
Hamburg, and Bremen, which formed ap al- 
liance for the mutual protection and further- 
ance of their commerci] interests, in the 
twelfth century. The powerful confederacy 
thus formed was called the “ITlanseaiic 
League.” The league framed and promul- 


HANSEATIC 


gated a code of maritime law, which wis 
known as the “Laws of the Hanse Towns,” 
or Jus Hanseaticum Maritimum. 


HANSEATIC. Pertaining to.a hanse or 
commercial alliance; but, generally, the union 
of the Hanse towns is the one referred to, as 
in the expression the “Ilanséatic League.” 


HANSGRAVE,. The chief of a company; 
the head man of a corporation. 


HANTELOD. In old European law. 
An arrest, or attachment. Spelman. 


HAP. Tocatch. Thus, “hap the rent,” 
“hap the deed-poll,” were formerly used. 


HAPPINESS. The constitutional right 
of men to pursue their “happiness” means 
the right to pursue any lawful business or 
vocation, in any manner not inconsistent 
with the equal rights of others, which may 
increase their prosperity, or develop their 
faculties, so as to give to them their highest 


enjoyment. 111 U.S. 757, 4 Sup, Ct. Rep. 
652; 1 Bl. Comm. 41. 
HAQUE, In old statutes. <A hand-gun, 


about three-quarters of a yard long. 


HARACIUM. In old English law. A 
race of horses and mares kept for breed; a 
stud. Spelman, 


HARBINGER. In England, an officer 
of the royal household. 


HARBOR, ov. To receive clandestinely 
and without lawful authority a person for 
the purpose of so concealing him that another 
having a right to the lawful custody of such 
person shall be ileprived of thesame. 65 How. 
215, 227. <A distinction has been taken, in 
some decisions, between “harbor” and “con- 
ceal.” A person may be convicted of hur- 
boring a slave, although he may not have 
concealed her. 24 Ala. 71. 


HARBOR, n. A haven, or aspace of deep 
water so sheltered by the adjacent land as to 
ufford a safe anchorage for ships. 

“Port” is a word of larger import than “harbor, ” 
since it implies the presence of wharves, or at any 
rate the means and opportuuity of receiving and 
discharging cargo. 

HARBOR AUTHORITY. In England 
aw harbor authority is a body of persons, cor- 
porate or unincorporate, being proprietors of, 
or intrusted with the duty of constructing, 
improving, managing, or lighting, any har- 
bor. St. 24 & 25 Vict. c. 47. 


HARD LABOR. A purishtuens, addi- 
tional to mere imprisonment, sometimes 1m- 


562 


HAUGH 


posed upon convicts sentenced to a peniten- 
tiary. But the labor is not, as a rule, any 
harder than ordinary mechanical labor. 


HARDHEIDIS. Inold Scotch law. 
Lions; coins formerly of the value of three 
half-pence. 1 Pite. Crim. Tr, pt. 1, p. 64, 
note. 


HARDSHIP. The severity with whicha 
proposed construction of the law would bear 
upon a particular case, founding, sometimes, 
an argument against such construction, which 
is otherwise termed the “argument ab éicon- 
venienti.” 


HARWASCA. Inold Europeanlaw. The 
defensive armor of a man; harness. Spel- 
man, 


HARNESS. All warlike instruments; 
also the tackle or furniture of a ship. 


HARC, HARRON. Fr. In Norman 
and early English law. An outery, or hue 
and cry after felons and malefactors. Cow- 
ell. 


HARRIOTT. The old form of “heriot,” 
(q. 0.) Williams, Seis. 203, 


HART. A siag or male deer of the forest 
five years old complete, 


HASP AND STAPLE. In old Scotch 
law. The form of entering an heirin a sub. 
ject situated within a royal borough. It con- 
sisted of the heir’s taking hold of the hasp 
and staple of the door, (which was the sym- 
bol of possession,) with other formalities. 
Bell; Burrill. 


HASPA. In old English law. The hasp 
of a door; by which livery of seisin might 
anciently be made, where there was a house 
on the pretiises. 


HASTA. Lat. Aspear. Inthe Roman 
law, a spear wis the sign of a public sale of 
goods or sale by auetion. Hence the phrase 
“hasta subjicere” (to put under the spear) 
meant to put up at auction. Calvin. 

In feudal law. A spear. The symbo! 
used in making investiture of a fief. Feud. 
lib. 2, tit. 2. 


HAT MONEY, In maritime law. Pri- 
mare; asmall duty paid to the captain and 
mariners of a ship. 


HAUBER. O.Fr. 
baron. Spelman. 


HAUGH, or HOWGH. A green plet 
ina valley. 


A high lord; a great 


HAUL 


HAUL. The use of this word, instead of 
the stututory word “carry,” in an incict- 
ment charging that the defendant “did felo- 
niously steal, take, and Agul away” ceriain 
personalty, will not render the indictment 
bad, the words being in one sense equivalent, 
108 Ind. 171, 8 N. E. Rep. 911. 


HAUR. In old English law. Hatred. 
Leg. Wm. I. e. 16; Blount. 


HAUSTUS, Lat. In the civil law. A 
species of servitude, consisting in the right 
to draw water from another’s well or spring, 
in which the tter, (right of way to the well 
or spring) so far as if is necessary, is tacitly 
inelnded. Dig. 8,3, 1; Mackeld. Rum. Law, 
§ 318. 


HAUT CHEMIN. L Fr. Highway. 
Yearb. M. 4 Hen. VI. 4. 


HAUT ESTRET. L. Fr. High street; 
highway. Yearb. P. 11 Hen. VI. 2. 


HAUTHONER. A man armed with a 
coat of mail. Jacob. 


HAVE. Lat. A form of the saluta- 
tory expression “Ave,” used in the titles of 
some of the constitutions of the Theodosian 
and Justinianean codes. See Cod. 7, 62, 9; 
fa. 9, 2, 12. 


HAVE. To possess corporally. “No 
one, at common law, was said to keve or to 
be in possession of land, unless it were con- 
yeyed to him by the livery of seisin, which 
gave him the corporal investiture and bodily 
occupation thereof.” Bi. Law Traets, 118. 


HAVE AND HOLD. Acommon phrase 
in conveyancing, derived from the khabendum 
et tenendum of the old common law. See 
HaseNpDUM ET TENENDUM. 


HAVEN. A place of a large receipt and 
safe riding of ships, so situate and secured 
by the land cireuimjacent that the vessels 
thereby ride and anchor safely, and are pro- 
tected by the adjacent land from dangerous 
or viclent winds; as Milford Haven, Plym- 
outh Haven, and the like. Hale de Jure 
Mar. par. 2, ¢. 2. 


HAW. <Asmiull parcel of land so called 
In Kent; houses. Co. Litt. 3. 


HAWBEHRE. He who held land in 
France, by finding a coat or shirt of mail, 
with which he waa to be ready when called 
ipon. Wharton, 


HAWGH, HOWGH. In old English 
law. A valley. Co, Litt. 58. 


563 


HE 


HAWKER. A trader who goes from 
place to place, or along the streets of a town, 
selling the goods which he carries with him. 


It is perhaps nat essential to the idea, but is gen- 
erally understood from the word, that a hawker is 
to be one who not only carries goods for sule, but 
seeks for purchasers, elther by outery, which some 
lexicographers conceive as intimated by the der- 
ivation of the word, or by attracting notice and 


) attention to them, as gouds for sale, by an actual 


exhibition or exposure of them, by placards or la- 
bsis, or by a conventional signal, like the sound 
of a horn for the sale of fish. [£2 Cush, 458, 


HAWKING. The business of one who 
sells or offers goods for sale on the streets, 
by ontery, or by attracting the attention of 
persuns by exposing his goods in a public 
piace, or by placards, labels, or signals. 107 
Ind. 505, 8 N. E. Rep. 609. 


HAY-BOTH. Another name for “hedge- 
bote,” being one of the estovers allowed toa 
tenant for life or years, namely, material for 
repairing the necessary hedges or fences of 
his grounds. 213]. Comm. 35; 1 Washb. Real 
Prop. 129. 


HAYWARD. In old English law. An 
officer appointed in the lord’s court to keepa 
common herd of catile of a town; so called 
because tie was to see that they did not break 
or injure the hedges of inclosed grounds, 
His duty was also to impound trespassing 
cattle, and to guard against pound-breaches. 
Kitch. 46; Cowell. 


HAZARD. An unlawful game at dice, 
and those who play at it are called “hazard- 
ors.” Jacob. 


HAZARDOUS. Exposed to or involy- 
ing danger; perilous; risky. 

Theterms “hazardous,” “extra-hazardous,” 
“specially hazardous,” and “not hazardous” 
are well-understood technical terms in the 
business of insurance, having distinct and 
separate meanings. Although what goods 
are included in each designation may not be 
so known as to dispense with actual proof, 
the terms thenuiselyes are distinct and known 
to beso. 38N. Y. 364; 47 N, Y. 597. 


HAGARDOUS CONTRACT. A con- 
tract in which the performance of that which 
is one of its objects depends on an uncertain 
event, Civil Code La. art, 1769. Seel J. 
J. Marsh, 596, 


HE. Tho use of this pronoun in a writ- 
ten instrument, in referring to a person 
whose Christian name is designated therein 
by a mere initial, is not conclusive that the 
person referred to is a male; it may beshown 


HE 564 


by parol that the person intended is a female. 
71 Cal. c8, 11 Pac. Rep. 802. 


He who has committed iniquity shall 
act have equity. Francis, Max. 


He who seeks equity must do equity. 
it is in pursuance of thid maxim that equity 
enforces the right of the wife’s equity to a 
settlement, Snell, fg. (5th Hd.) 374. 


HEAD. Chief; leading; principal; the 
upper part or principal source of a atream. 


HEAD OF A CREEK. This term 
meuns the source of the longest branch, un- 
less gencral reputation has given the appel- 
lation to another. 2 Bibb, 110. 


HEAD OF A FAMILY. A term used 
in homestead and exemption laws to designate 
& person who maintains a family; a house- 
holder. 


HEADBOROUGH. InSaxenlaw. Ths 
head or chief officer of a borough; chief of 
the frankpledge tithing or decennary. ‘his 
office was afterwards, when the petty consta- 
bleship was created, united with that office. 


HEAD-COURTS., Certain tribunals in 
Scotland, abolished by 20 Geo. Il.c. 50. Ersk. 
1, 4, 5. 


HEADLAND. In old English law. A 


narrow piece of unplowed land left at the end | 
of a plowed field for the turning of the plow, | 


Called, also, “butt.” 


HEAD-NOTE. A syllabus toa reported 
ease; a summary of the points decided in the 
case, which is placed at the head or begin- 
ning of the report. 


HERAD-PENCEH. An exaction of 40d. or | 


more, collected by the sheriff of Northumber- 
land from the people of that county twice in 
every seven years, without account to the 
king, Abolished in 1444. Cowell. 


HEHAFODWEARD. Inold English law. 
One of the services to be rendeved by a thane, 
but in what it consisted seems uncertain, 


HEALGEMOTE. In Saxon law. A 
eourt-baron; an ecclesiastical court, 


HEALSFANG. In Saxon law. A sort 
of pillory, by which the head of the culprib 


HEARTH MONEY 


persons. 1 BI. Comm. 129, 184. As to in- 
juries affecting health, see 3 Bl. Comm. 122. 


HEALTH LAWS. Laws prescribing 
sanitary measures, and designed to promote 
or preserve the health of the community. 


HEALTH OCFFICER. The officer 
charged with the exeeution and enforcement 
of health laws. The powers and duties of 
health oflicers are regulated by local laws. 


HEALTHY. Free from disease or bodily 
ailment, or any state of the system peculiarly 
susceptible or liable to disease or bodily ail- 
ment. 13 red. Law, 350. 


HEARING. In equity practice. The 
hearing of the arguments of the eounse! for 
the parties upon the pieadings, or pleadings 
and proo!s; corresponding to the trial of an 
action at law. : 

The word “hearing” has an established meaning 
a3 applicable to equity cases. It means the same 
thing in those cases that the word “trial” does in 
cases atlaw. And the words “final hearing” have 
long been used to designate the trial of an equity 
case upon the merits, as distinguished from the 
hearing of any preliminary questions arising in 
the cause, and which are termed “interlocutory.” 
24 Wis. 171, 

In criminal iaw. The examination of a 
prisoner charged with a crime or misdemean- 
or, and of the witnesses for the accused. 


HEARSAY. A term applied to that spe 
cies of testimony given by a witness who re- 
lates, not what he knows personally, but what 
others have told him, or what he has heard 
said by othera. 

Hearsay evidence is that which does not 
derive its value solely from the credit of the 
witness, but rests mainly on the veracity and 
competency of other persons. ‘The very nat- 
ure of the evidence shows its weakness, and 
it is admitted only in specified cases from 
necessity. Code Ga. 1882, § 3770; 1 Phil. 
Ev. 185. 

Hearsay evidence is second-hand  evi- 
dence, as distinguished from original eyi- 
dence; it is the repetition at second-hand of 
what would be original evidence if given by 


the person who originally made tiie state- 


a bet two beards, as feet are | 
ee ee ees OTT ingland by St. 14 Car. IL. e. 10, consisting of 


eaught in a pair of stocks. Cowell. 


HEALTH. Freedom from sickness or 
suffering. The right to the enjoyment of 


| 
| 


ment. 
HEARTH MONEY. A tax levied in 
two shillings on every hearth or stove in the 


kingdom. It was extremely unpopular, and 
was abolished by 1W. & M. St. 1, c. 10, 


health ia a subdivision of the right of per- This tax was otherwise called “chimney 
sonal! security, one of the absolute rights of | money.” 


—_ 


HEARTH SILVER 


HEARTH SILVER. 
A species of modus or composition for tithes. 
Anstr, $28, 326. 


HHAT OF PASSION. In criminal law. 
A state of violent and uncontrollable rage 
engendered by a blow or certain other proyo- 
tation given, which will reduce a homicide 
from the grade of murder to that of man- 
slaughter. A state of mind contradistin- 
guished from a cool state of the blood. 66 
Mo. 13: 74 Mo, 250. 


HEBRERMAN, An unlawful fisher in 
the Thames below London bridge; so called 
because they generally fished at ebbing tide 
or water. 4 Hen. VII. c. 15; Jacob. 


HEBBERTHEF. In Saxon law. The 


privilege of having the gouds of a thief, and j 


the trial of him, within a certain liberty. 
Cowell. 


HEBBING-WEARS. 
catching fish in ebbing water. 
VILi. ¢. 5. 


HEBDOMAD. 
days. 

HEBDOMADIUS. A week's man; the 
eanon or prebendary in a cathedral church, 
who had the peeuliar care of the choir and 
the offices of it for his own week. Cowell. 


HHCCAGIUM. In feudal law. 
paid to a lord of the fee for a liberty to use 
the engines called “hecks.” 


HECK. An engine to take fish in the 
river Ouse. 23 Hen, VUI. c. 18. 


HEDA. <A small haven, wharf, or land- 
ing place. 


HEDAGIUM. Toll or customary dues 
at the hithe or wharf, for landing goods, ete., 
from which exemption was granted by the 
crown to some particular persons and socie- 
ties. Wharton. 


HEDGE-BOTE. An allowance of wood 
for repairing hedges or fences, which a ten- 
ant or lessee has a right to take off the land 
let or demised to him. 2 Bl. Comm. 365. 


HEDGE-PRIEST. A vagabond. priest 
in olden time. 


HEGHMONY. The leadership of one 
among several independent confederate 
states. 


HEGIRA. The epoch or account of tims 
used by the Arabians and the Turks, who 
begin their computation from the day that 


A device for 
St. 23 Hen. 


A week; a space of seven 


565 


Rent | 


| formally renounced. 


HEIR AT LAW 


In English law. | Mahomet was compelled to escape from 


Mecea, which happened on Friday, July 16, 
A. D. 622, under the reign of the Emperor 
Heraclius. Wharten. 


HEGUMENOS. The leader of the monks 
in the Greek Chureh. 


HEIFER. A young cow which has not 
hadacalf. 2 East, P. CG. 616. 


HEIR. At common law. A person 
who succeeds, by the rules of law, to an estate 
in lands, tenements, or heredifamenta, upon 
the death of his ancestor, by descent and 
right of relationship. 

The term “heir” has a very different significa. 
tion at common law from what it has in those 
states and countries which have adopted the civil 
law. In the latter, the term is indiscriminately 
applied to all persons who are called to the succes- 
sion, whether by the act of the party or by opera- 
tion of law. The person who is created universal 
successor by a will is called the “testamentary 
heir;” and the next, of kin by blood is, in cases of 
intestacy, called the “heir at law,” or “heir by in- 
testacy.” The executor of the common law in 
many respects corresponds to the testamentary 
heir of the civil law. Again, the administrator in 
many respects corresponds with the heir by intes- 
tacy, By the common law, executors and admin- 
istrators have no right except to the personal ea 
tate of the deceased, whereas the heir by the civil 
law is authorized to administer both the personal 
and real estate. Story, Confl. Laws, §§ 507, 503. 


In the civil law, A universal successor 
in the event of death. He who actively or 
passively succeeds to the entire property or 


| estate, rights and obligations, of a decedent, 


and occupies his place. 

The term “heir” has several significations. Some- 
timés it refers to one who has formaily accepted 
@ succession and taken possession thereof; some- 
times to one who is called to succeed, but still re- 
tains the faculty of accepting or renouncing, and 
it is frequently used as applied to one who has 
26 La. Ann. 417. 

In Seocteh law. The person who suc- 
ceeds to the heritage or heritable rights of 
one deceased. 1 Forb. Inst. pt. 3, p.75. The 
word has a more extended signification than 
in English law, comprehending not only those 
who succeed to lanus, but suecessers to per- 
sonal pruperty also. Wharton. 


HEIR APPARENT. An heir whose 
right of inheritance is indefeasible, provided 
he outlive the ancestor; as in England the 
eldest son, or his issue, who ronst, by the 


! course of the common law, be heir to the 


father whenever he happens to die. 2 Bl. 


Comm. 208; 1 Steph. Comm. 358. 


BETRAAT TAyoHerwhes alters ME 


ancestor's death intestate, has a right to in- 


HEIR BENEFICIARY 


herit all lands, tenements, and hereditaments 
which belonged to him or of which he was 
seised. The same as “heir general.” 


HEIR BENEFICIARY. Im the civil 
law. One who hus accepted the succession 
under the benefit of an inventory regularly 
made. a 

Heirs are divided into two classes, according to 
the manner in which thay accept the successions 
left to them, to-wit, unconditional and beneficiary 
heirs. Unconditional heirs are those who inherit 
without any reservation, or without making an in- 
ventory, whether their acceptance be express or 
tacit. Beneficiary heirs are those who have ac- 
cepted the succession under the benefit of an in- 
ventory regularly made. Ciyil Code La. art. 881. 


One whose right of inheritance depends upon 
a particular and local custom, such as gavel- 
kind, or borough English, Co. Litt. 140. 


HEIR BY DEVISE. Onetowhom 
lands are devised by will; a devisee of lands. 
Answering to the h@res facius (q. 0.) of the 
civil law. 


HEIR COLLATERAL. One who is 
not lineally related to the decedent, but is of 
collateral kin; e. g., his uncle, cousin, brother, 
nephew. 


HEIR CONVENTIONAL. Inthecivil 
law. One who takes a succession by virtue 
of a contract or settlement entitling him 
thereto, 


HEIR, FORCED. One who cannot be 
disinherited. See Forcep Heirs. 


HEIR GENERAL. An heir at law. 
The ordinary heir by blood, succeeding to all 
the lands. 


HEIR INSTITUTE. In Scotch law. 
One to whom the right of succession is as- 
certained by disposition or express deed of 
the deceased. 1 Forb. Inst. pt. 3, p. 75. 


HEIR, IRREGULAR. In Louisiana, 
Irregular heirs are those who are neither tes- 
tamentary nor legal, and who have been es- 
tablished by law to take the succession. Sea 
Civil Code La. art. 874. When there are no 
direct or collateral relatives surviving the 
decedent, und the succession consequently 
devolves upon the surviving husband or 
wife, or illegitimate children, or the state, if 
is called an “irregular succession.” 


HEIR, LEGAT In the civil law. A 
legal lieir is one who takes the succession by 
relationship to the decedent and by force of 
law. This is different from a testamentary 


566 


HEIR SUBSTITUTE, IN A BOND 


or conventional heir, who takes the succes. 
sion in virtue of the disposition of man. 
See Civil Code La. arts. 873, 875. 


HEIR-LOOMS. Such goods and chattels 
as, contrary to the nature of chattels, shail go 
by special custom to the heir along with the 
inheritance, and not to the executor. ‘The 
termination “oom” (Sax.) signifies a limb or 
member; so that an heir-loom is nothing else 
but a limb or member of the inheritance. 
They are generally such things as cannot be 
taken away without damaging or disimem- 
bering the freehold; such as deer in a park, 
doves in a cote, deeds and charters, etc. 2 


: | Bl. Comm, 427. 
HEIR BY CUSTOM. In English law. | 


HEIR MALE. InScotehlaw. An heir 
institute, who, thouzh not next in blood to 
the deceased, is his nearest male relation that 
can succeed to him. 1 Forb. Inst. pt. 3, p. 76. 


HEIR OF CONQUEST. InScotch law, 
One who succeeds to the deceased in con- 
quest, t. e., lands or other heritable rights to 
which the deceased neither did nor could sue- 
ceed as heir to his predecessor. 


HEIR OF LINE. InScotchlaw. One 
who succeeds lineally by right of blood; one 
who succeeds to the deceased in his heritage; 
z. e., lands and other heritable rights derived 
to him by succession as heir to his predeces- 
sor. 1 Forb. Inst. pt. 3, p. 77. 


HEIR OF PROVISION. In Scotch law. 
One who succeeds as heir by virtue of a par- 
ticular provision in a deed or instrument. 


HEIR OF TAILAIE. In Scotch law, 
He on whom an estate is settled that would 
not have fallen to him by legal succession. 1 
Forb. Inst. pt. 3, p. 75. 


HEIR PRESUMPTIVE. The person 
who, if the ancestor should die immediate- 
ly, would, in the present cireumstances of 
things, be his heir, but whose right of in- 
heritance may be defeated by the contin- 
gency of sone nearer lieir being born; as a 
brother or nephew, whose presumptive suc- 
cession may be destroyed by the birth of a 
child. 2 Bl. Comm. 208; 1 Steph. Comm. 
358. 

HEIR SPECIAL. In English law. The 
issue in tail, who claims per formaim dont; 
by the form of the gift. 


HEIR SUBSTITUTE, IN A BOND. 
In Scotch law. He to whom a bond is pay- 
able expressly in case of the creditor’s de- 
cease, or after his death. 1 Forb. Inst. pt. 
3, p. 76. 


ro 


HEIR TESTAMENTARY ui) 


HEIR TESTAMENTARY. Inthe civil 
law. One who is named and appointed heir 
In the testament of the decedent. This name 
distinguishes him from a Zega? heir, (one up- 
on whom the law casts the succession,) and 
from a conventional heir, (one who takes it 
by viztue of a previous contract or settle- 
ment.) 


HEIR UNCONDITIONAL. In the 
civil law. One who inherits without any 
reservation, or without making an inventory, 
whether his acceptance be express or tacit. 
Distinguished from heir bencficiary, (g. v-) 


HEIRDOM. Succession by inheritance. 


HEIRESS. A female heir to a person 
having an estate of inheritance, When there 
are more than one, they are called “co-heir- 
esses,” or “co-heirs.” 


HEIRS. A word used in deeds of convey- 
ance, (either solely, or in connection with 
others,) where it is intended to pass a fee. 


HEIRS OF THE BODY. An beir be- 
gotten or borne by the person referred to; a 
lineal descendant. The terms “natural heirs” 
and “heirs of the body,” in a will, and by 
way of executory devise, are considered as of 
the same lecalimport. 19 Conn. 112. 


HEIRSHIP. The quality or condition of 
being heir, or the relation between the heir 
and his ancestor. 


HEIRSHIP MOVABLES. In Seotch 
law. The movables which go to the heir, 
and not to the executor, that the land may 
not go tothe heir completely dismantled, such 
as the best of furniture, horses, cows, etc., 
but not fungibles. Bell. 


HELL. The name given to a place under 
the exchequer chamber, where the king’s 
debtors were confined. Rich. Dict. 


HELM. Thatch or straw; a covering for 
the head in war; a coat of arms bearing a 
crest; the tiller or handle of the rudder of a 
ship. 

HELOWE-WALL. Theend-wall cover- 


ing and defending the rest of the building, 
Paroch. Antiq, 573. 


HELSING. A Saxon brass coin, of the 
value of a half-penny. 


HEMOLDBORH, or HELMEL- 
BORCH. A title to possession. ‘The ad- 
mission of this old Norse term into the laws 
of the Conqueror is diflicult to be accounted 


67 HERALD 
for; it is not found in any Anglo-Saxon law 
extant, Wharton. 


HENCHMAN. A page; an attendant; a 
herald. 


HENEDPENNY. <A customary pay~ 
ment of money instead of hens at Christmaw; 
a composition for eggs. Cowell. 


HENFARE. A fine for flighton account 
oi murder. Domesday Book. 


HENGHEW. In Saxon law, 
a gaol, or house of correction. 


HENGWYTE. Sax. In old English 
law. An acquittance from a fine for hang- 
ing athief. Fileta, lib. 1, ¢. 47, § 17. 


HENRICUS VETUS. Henry the Old, 
or Elder. King Henry I. is so called in an- 
cient English chronicles and charters, to dis- 
tinguish him from the subsequent kings of 
that name. Spelman. 


HEORDFATE, or HUDEFAST. In 
Saxon law. A master of a family, keeping 
house, distinguished from a lower class of 
freemen, viz., folgeras, (folgarit,) who had 
no habitations of their own, but were house- 
retainers of their lords. 


HEORDPENNY. Peter-pence, (g. 2.) 


HEORDWERCH. In Saxon law. The 
service of herdsmen, done at the will of their 
lord. 


HEPTARCHY. A government exercised 
by seven persons, or a nation divided into 
; seven governments. In the year 560, seven 
different monarchies had been fermed in 
England by the German tribes, namely, that 
of Kent by the Jutes; those of Sussex, Wes- 
sex, and Essex by the Saxons; and those of 
East Anglia, Bernicia, and Deira by the An- 
gles. To these were added, about the year 
586, an eighth, called the “Kingdom of Mer- 
cia,” also founded by the Angles, and com- 
prehending nearly the whole of the heart of 
the kingdom. ‘These states formed what has 
been designated the “Anglo-Saxon Octar- 
chy,” or more commonly, though not so cor- 
rectly, the “Anglo-Saxon Heptarchy,” from 
the custoro of speaking of Deira and Bernicia 
under the single appellation of the “Kingdom 
of Nortiiamberland.” Wharton, 


HERALD. In ancient law, a herald was 
a diplomatic messenger who carried messaver 
between kings or states, and especially proc- 
lamations of war, peace, or truce. In En- 
glish law, a herald isan officer whose dutv 
is to keep genealogical lists and tables, ad- 


A. prison, 


HERALDRY 


just armorial bearings, and regulate the cer- 
emonies at royal coronations and funerals. 


HERALDRY. The art, office, or science 
of heralds. Also an old and obsolete abuse 
of buying and selling precedence in the pa- 
per of causes for hearing. 


HERALDS’ COLLEGE. In England. 
An ancient royal corporation, first instituted 
by Richard IIT. in 1483. It comprises three 
kings of arms, six heralds, and four marshals 
or pursuivants of arms, together with the 
earl marshal and a secretary. ‘The heralds’ 
books, compiled when progresses were sol- 
emnly and regularly made into every part of 
the Kingdom, to inquire into the state of fam- 
ilies, and to register such marriages and de- 
scents as were verified to them upon outh, 
are allowed to be good evidence of pedigrees. 
The heralds’ office is still allowed to make 
grants of arms and, to permib change of 
names. 3 Starkie, Ev. $43; Wharton. 


HERBAGE. In English law. An ease- 
ment or liberty, which consists in the right 
to pasture cattle on another’s ground. 

Feed for cattle in fields and pastures, 
Bract. fol. 222; Co. Litt. 46; Shep. Touch. 
97. Avight to herbage does not includea 


568 


right to cut grass, or dig potatoes, or pick | 


apples. 4N. H. 303. 


HERBAGIUM ANTERIUS. The first 
crop of grass or hay, in opposition to after- 


math or second cutting. Paroch. Antig. | 


459. 


HERBENGER, or HARBINGER. An 
viticer in the royal house, who goes before 
and allots the noblemen and those of the 
household their lodgings; also an innkeeper. 


HERBERGAGIUM. Lodgings to tre- 
ceive guests in the way of hospitality. Cow- 
ell. 


HERBERGARE. To harbor; to enter- 
tain. 


HERBERGATUS. Harbored or enter- 
tained in aninn. Cowell. 


HERBERY, or HERBURY. An inn. 


' Cowell. 


HERCIA. A harrow. 
ria 


HERCIARE, 


Fileta, lib. 2, c. 


To harrow. 4 Inst. 270. 


HERCIATURA. In old English law. 
Harrowing; work with a harrow. Fleta, 
lib. 2, ¢. 82, § 2. 


HEREDITAMENTS 


HERCISCUNDA  Inthecivillaw. To 
be divided. Familia herciscunda, an in- 
heritanee to be divided. Actio familie her- 
eiscund@, an action for dividing an inher- 
itance. #Hreiscunda is more commonly used 


in the civil law. Dig. 10, 2; Inst. 3, 28, 4; 
| Id. 4, 6, 20. 


HERDEWICH. A grange or place for 
cattle or husbandry. Mon. Angl. pt. 3. 


“HERDWERCH, HEORDWERCH. 
Herdsmen’s work, or customary labor, done 
by shepherds anid inferior tenants, at the will 
of the lerd. Cowell. 


HEREBANNUM. In old English law. 
A proclamation summoning the army into 
the field. 

A muleé or fine for not joining the army 
when sumimoned. Spelman. 

A tax or tribute for the support of the 
army. Du Cange. 


HEREBOTEH, The royal edict summon 
ing the people to the field. Cowell. 


HEREDAD. In Spanish law. A pieee 
of land under cultivation; a cultivated farm, 
real estate, 


HEREDAD YACENTE. From Lat. 
“hereditas jacens,” (qg.0.) In Spanish law. 
An inlieritance not yet entered upon or ap- 
propriated. White, New Recop. b. 2, tit. 19, 
c. 2, § 8. 


HEREDERO, In Spanish law. Heir; 
he who, by legal or testamentary disposition, 
succeeds to the property of a deceased per- 
son. “Hwres censcatur cum defuncto una 
eacdemque persona.” Las Partidas, 7, 9, 13. 


HEREDITAGIUM. In Sicilian and Ne- 
apolitan law. That which is held by heredi- 
tary right; the same with heredifamentum 
(hereditament) in English law. Spelman. 


HEREDITAMENTS. Things capable 
of being inherited, be it corporeal or incorpo- 
real, real, personal, or mixed, and including 
not only lands and everything thereon, but 
also heir-looms, and certain furniture which, 
by custom, may descend to the heir together 
with the land. Co. Litt. 56; 2 Bl. Comm. 
Wis 

The two kinds of hereditaments are cor- 
poveal, which are tangible, (in fact, they 
mean the same thing as land,) and incorpo- 
real, which are not tangible, and are the 
rights and profits annexed to or issuing out 
of land. Wharton. 


The term iuciudes a few rights unconnected 
with land, but it is generally used as the widest 


TIEREDITARY 


expression fer real property of all kinds, and is 
therefore employed in conveyances after tha words 
‘“Jands" and “tenements,” to include everything 
of the nature of realty which they do not cover. 
Sweet. 


HEREDITARY. That which is the sub- 
ject of inheritance, ' 


HEREDITARY RIGHT TO THE 
CROWN. The crown of England, by the 
positive constitution of the kingdom, has ever 
been descendible, and so continues, in a 
course peculiar to itself, yet subject to limita- 


tion by parliament; but, notwithstanding | 


such limitation, the crown retains its de- 
scendible quality, and becotaes hereditary in 
the prince to whom it is limited, 1 1. 
Comm. 191. 


HEREFARE. Sax. A going into or 
with an army; a going out to war, (py'nfec- 
tio militaris;) an expedition. Spelman. 


HEREGEAT. A heriot, (g. 0.) 


HEREGELD. Sax. Inold Englishlaw. 
A tribute or tax levied for the maintenance 
ofanarmy. Spelman. 


HEREMITORIUM. A place of retire- 
ment for hermits. Mon. Angi. tom, 3, p. 18. 


HEREMOWES. Followers of an army. 
HERENACH. <Anarchdeacon. Cowell 


HERES. Heir; an heir. A form of 
heres, yory common in the civil law. See 
HERES. 


HERESCHIP. In old Scotch law. 
or robbery. 
26, 69. 

HERESLITA, HERESSA, HERESSIZ, 


A hired soldier who departs without license. 
4 Inst. 128. 


HERESY. In English law. An offenre 
against religion, consisting not in a total de- 
nial of Clivistianity, but of some of its essen- 
tial doctrines, publicly and obstinately 
avowed. 4 Bl. Comm. 44,45. An opinion 
on divine subjects devised by human reason, 
openly taught, and obstinately maintained. 
1 Hale, P. ©. 884. This offense is now sub- 
ject only to ecclesiastical correction, and is 
ne longer punishable by the secular law. 4 
Steph. Comm. 233. 


HERETOCH. A general, leader, or com- 
mander; algo a@ baron of the realm. Du 
Fresne. 


HERETOYORE. This word simply de- 
noles iime past, in distinction from time 


Theft 


569 


1 Pite. Crim. Tr. pt. 2, pp. | 


HERITABLE JURISDICTIONS 


present or time future, and haa no definite 
and precise signification beyond this. 40 
Conn, 157. 


HERETUM. In old records. A court 


or yard for drawing up guards or mililary 
retinue. Cowell. 


BEREZELD. In Seotch law. A gift or 
present mace or left by a tenant to his lord 
a3 a token of reverencs. Skene. 


HERGE. In Saxon law. Offenders who 
joined in a body of more than thirty-five to 
commit depredations, 


HERIGALDS., In old Englishlaw, A 
sort of garment. Cowell. 
HERIOT, In English law. A custon> 


ary tribute of goods and chattels, payable to 
the lord of the fee on the decease of the own~ 
er ot the land, 

Heriots are divided into heriot service and heriot 
euston. The former expression denotes such as 
are due upon a special reservation in a grant or 
lease of lands, and therefors amount to little mora 
than a mere rent, the latter arise upon no special 
reservation whatever, but depend solely upon im- 
momorial usage and custom. 2 BL Comm. 422. 


HERISCHILD. A species of military 
service, or knight's fee. Cowell. 


HERISCHULDA. [fm old Scotch law. 


' A fine or penalty for net obeying the proc- 


lamation made for warfare. Skene. 


HERISCINDIUM. A division of house 


hold goods. Blount. 

HERISLIT. Laying down of arma. 
Blount. Desertion from the army. spel- 
man. 


HERISTAL. The station of an army; 
the place where a camp is pitched. Spel- 
Inman. 


HERITABLE. Capable of being taken 
by descent. A term chielly used tn Seutch 
law, where it enters into several phrases. 


HERITABLE BOND. In Scoteh lew. 
A bond fora sum of money to which is added, 
for further security of the creditor, a convey-~ 
ance of land or heritage te be held by the cred- 
ifor as pledge. 1 Ross, Cony. 76; 2 Hose, 
Conv. 324. 


HERITABLE JURISDICTIONS. In 
Scotch law. Grants of criminal jurisdiction 
formerly bestowed on great families in Scot- 
land, to facilitate the administration of jus- 


tice. Whishaw. Abolished in effect by St. M 


20 Geo. II. ¢. 50. Tomlins. 


HERITABLE OBLIGATION 570 


HERITABLE OBLIGATION. In 
Louisiana. An obligation is heritable when 
the heirs and assigns of one party may en- 
foree the performance against the heirs of 
the other. Civil Code La. art. 1997. 


HERITABLE RIGHTS. In Scotch 
law. Righta of the heir; all rights to land 
or whatever is connected with land, as mills, 
fishings, tithes, etc. 


HERITAGE. Inthe civillaw, Every 
species of immovable which can be the sub- 
ject of property; such as lands, houses, or- 
chards, woods, marshes, ponds, etc., in what- 
ever mode they may have been acquired, 
either by descent or purchase. 3 Toullier, 
no, 472, 


In Scotch law. Land. and all property 
connected with land; real estale, as distin- 
guished from movables, or personal estate. 
Bell. 


HERITOR. In Scotch law. 
etor of land. 1 Kames, Eq. Pref. 


HERMANDAD. In Spanish law. A 
fraternity formed among different towns and 
villages to prevent the commission of crimes, 
and to prevent the abuses and vexations to 
which they were subjected by men in power. 
Bouvier. 


HERMAPHRODITE. An animal or 
human being so malformed as to have the 
organs of generation of both sexes. 


A propri- 


Hermaphroditus tam masculo quam | 


foomine comparatur, secundum preval- 
entiam ssxus incalescentis. An_her- 
maphrodite is to be considered male or fe- 
male according to the predominance of the 
exciting sex. Co. Litt. 8; Bract. fol. 5. 


HERMENEUTICS. The science or art 
of construction and interpretation. By the 
phrase “legal hermeneuties” is understood 
the systematie body of rules which are recog- 
nized as applicuble to the construction and 
interpretation of legal writings. 


HERMER. A great lord. 


HERMOGENIAN CODE. See Coprx 
HEenMOGENIANUS. 


HERNESCUS. Cowell. 


HERNESIUM, or HERNASIUM, 
Household goods; implements of trade or 
husbandry; the rigging or tackle of a ship. 
Cowell. 


HEROUD, HERAUD. 
ald. 


Jacob. 


A. heron. 


L. Fr. A her- 


| catching conies, 


HIDE 


HERPEX. A harrow. Spelman. 


HERPICATIO. In old English law. A 
day’s work with a harrow. Spelman, 


HERRING SILVER. This was a com- 
position in money for the custom of suppiy- 
ing herrings for the provision of a religious 
house. Wharton. 


HERUS. A master. Servus facit ut 
herus det, the servant does [the work] in 
order that the master may give [him the 
wages agreed on.] Herus dat wi servus 
Jacit, the master gives [or agrees to give, 
the wages,] in consideration of, or with a 
view to, the servyant’s doing [the work.] 2 
Bl. Comm. 445. 


HESIA. An easement. 


HEST CORN. In old records. Corn or 
grain given or devoted to religious persons 
or purposes, 2 Mon. Angl. 38676; Cowell. 


HESTA, or HESTHA. A little loaf of 
bread. 


HET#RARCHA. The head of a relig- 
ious house; the head of a college; the warden 
of a corporation. 


HETARIA. In Roman law. 
pany, society, or college. 


HEUVELBORE. Sax. 
law. A surety, (warrantus.) 


HEYLODE. In oldrecords, A custom- 
ary burden upon inferior tenants, for mend- 
ing or repairing hays or hedges. 


HEYMECTUS. <A hay-net; a net for 
Cowell. 


HIBERNAGIUM. The season for sow- 
ing winter corn. Cowell. 


HIDAGE. An extraordinary tax for- 
merly payable to the crown for every hide of 
land. This taxation was levied, not in mon- 
ey, but provision of armor, ete. Cowell. 


HIDALGO. In Spanish law. <A noble; 
a@ person entitled to the rights of nobility. 
By édaigos are understood men chosen from 
good situations in life, (de buenos lugures,) 
and possessed of property, (alge.) White, 
New Recop. b. 1, tit. 5, c. 1. 


HIDALGUIA. In Spanish law. Nobil- 
ity by descent or lineage. White, New 
Recop. b. 1, tit. 5, ¢ 8, § 4. 


HIDE. Inold English law. A measure 
of land, being as much as could be worked 
with one plow. It is variously estimated at 


Du Cange. 


A com- 


In old English 


——— 


HIDE AND GAIN 


from 60 to 109 acres, but was probably de- 
teritiined by local usage. Another meaning 
was as much land as would support one 
farnily or the dwellers in a mansion-house. 
Also a house; a dwelling-house. 


HIDE AND GAIN. In English law. 
A tezm anciently applied to arable land. 
Co. Litt. 856, 


HIDE LANDS. In Saxon law. Lands 
belonging to a hide; that is, a house or 
Mansion. Spelman, 


HIDEHL. In old English law. A piace 
of protection; 2 sanctuary. St. 1 Hen. VII. 
ce, 5, 6; Cowell. 


HIDGILD. A sum of money paid bya 
villain or servant to save himself from a 
Whipping. Fleta, 1.1, ¢. 47, § 20, 


HIERARCHY. Originally, government 
by a hody of priests. Now, the body of offi- 
cers in any church or ecclesiastical institu- 
tion, considered as forming an ascending se- 
ries oi ranks or degrees of puwer and au- 
thority, with the correlative subjection, each 
to the one next above. Derivatively, any 
bedy of men, taken in their public capacity, 
and considered as forming a chain of powers, 
as above described. 


HIGH BAILIFF. An ollicer attached 
to an English county court. His duties are 
to attend the court when sitting; to serve 
summonses; and to execute arders, warrants, 
writs, ete. St. 9 &10 Vict. c. 95, § 33; Voll. 
6, G. Pr. 16. Tle also has similar duties un- 
der the bankruptcy jurisdiction of the county 
courts. 


HIGH COMMISSION COURT. In 
English law. An ecclesiastical court of very 
formidable jurisdiction, for the vindication 
of the peace and dignity of the church, by re- 
forming, ordering, and correcting the ecele- 
siastieul state and persons, and all mannerot 
errors, heresies, schisms, abuses, offenses, 
contempts, and enormities. 3 Bl. Comm. 67. 
It was erected by St. 1 Eliz. c. 1, and 
abolished by 16 Car. EB. c. 11. 


HIGH CONSTABLE. In English law. 
An otticer of publie justice, otherwise called 
“chief constable” and “constable of the hun- 
dred,” wliose proper duty is to keep the king’s 
peace within the hundred, as the petty con- 
stable does within the parish or township. 
§ Steph. Comm. 46,47. See ConsTaBLe. 

An officer appoiated in some cities with 
powers generally limited to matters of police, 


571 


HIGH CRIMES 


HIGH CONSTABLE OF ENGLAND, 
LORD. His office has been disused (except 
only upon great and solemn occasions, as the 
coronation, or the like) since the attainder 
of Staiford, Duke of Buckingham, in the 
reign of Henry VII. 


HIGH COURT OF ADMIRALTY. 
In English law. This was a court which ex- 
ercised jurisdiction in prize cases, and had 
general jurisdiction in muritime causes, on 
the imstance side. Its proceedings wera 
usually iz rem, and its practice and princi- 
ples derived in large measure from the civil 
law. The judicature acts of 1873 transferred 
aillthe powers and jurisdiction of this tri- 
bunai to the probate, divorce, and admiralty 
division of the Ligh court of justice. 


HIGH CouRT OF DELEGATES. 
In English law. A tribunal which formerly 
exercised appellate jurisdiction over cases 
brought from the ecclesiastical and admiral- 
ty courts. 8 Bl. Comm. 66. 

It was a court of great dignity, erected by 
the statute 25 Hen. VII. c, 19, It was abol- 
ished, and its jurisdiction transferred to the 
judicial committee of the privy council. 


BIGH COURT OF ERRORS AND 
APPBRALS. The court of last resort in the 
state of Mississippi. 


HIGH COURT OF JUSTICE. That 
branch of the English supreme court of judi- 
cature (g. ¥.} which exercises (1) the original 
jurisdiction formerly exercised by the evurt 
ot chancery, the courts of queen’s bench, 
common pleas, and exchequer, the courts of 
probate, divorce, and admiralty, the court of 
common pleas at Lancaster, the court of pleas 
at Durham, and the courts of the Judges or 
commissioners of assize; and (2) the appellate 
jurisdiction of such of those courts as heard 
appeals from inferior courta. Judicature 
act, i873, § 16. 


HIGH cCoOURT OF JUSTICIARY. 
See CourRT OF JUSTICIARY. 


HIGH COURT OF PARLIAMENT. 
In English law. The English parliament, as 
composed of the house of peers and house of 
commons; or the house of lords sitting in 
its judicial capacity. 


HIGH CRIMES. MWigh crimes and mis- 
demeanors are such immoral and unlawful 
acts as are nearly allied and equal in guilt to 
felony, yet, owing to some technical circuin- 
stance, do not fall within the definition of 
“felony.” 6 Conn. 417, 


HIGH JUSTICE 


HIGH JUSTICE. In feudal law. The 
jurisdiction or right of trying crimes of ev- 
ery kind, even the highest. This wasa priv- 
ilegs claimed and exercised by the great lords 
or barons of the middle ages. 1 Robertson’s 
Car. V., appendix, note 23. 


HIGH JUSTICIER. .-In old French and 
Canadian law. A feudal lord who exercised 
the right called “high justice.” Guyot, 
Inst. Feod. c. 26. 


HIGH MISDEMEANORS, See Mis- 
PRISION; High Crimes. 


HIGH SCHOOL. A school in which 
higher branches of learning are taught than 
in the common schools. 123 Mass. 306. A 
school in which such instruction is given as 
will prepare the students to enter a college 
or university. 


HIGH SEAS. Theocean; public waters. 
Aceording tothe English doctrine, the high 
sea begins at the distanceof three miles from 
the coast of any country; according to the 
American view, ab low-water mark, except 


in the case of small harbors and roadsteads | 


inclosed within the fauces ferre. 

The open ocean outside of the fauces terre, 
as distinguished from arms of the sea; the 
waters of the ocean without the boundary of 
any county. 


Any waters on the sea-coast which are | 


without the boundaries of low-water mark. 


HIGH STEWARD, COURT OF THE 
LORD. In Englishlaw. <A tribunal insti- 
tuted for the trial of peers indicted for trea- 
son or felony, or for misprision of either, 
but not for any other offense. The office is 


very ancient, and was formerly hereditary, | 


or held for life, or dam bene se gesserit; but 
it has been for many centuries granted pro 
hae viee only, and always to a lord of partia- 
ment. When, therefore, such an indictment 
is found by a grand jury or freeholders in 
the queen’s bench, or at the assizes before a 
judge of oyer and terminer, it is removed by 
a writ of certioraré into the court of the lord 
high steward, which alone has power to de- 
termine it. A peer may plead a pardon be- 
fore the queen’s bench, in order to prevent 
the trouble of appointing a high steward, 
merely to receive the plea, but he cannot 


plead any other plea, because it is possible | 


that, in consequence of such plea, judgment 
of death might be pronounced upon him. 
Wharton. 


HIGH TREASON. In English law. 
Treason against the king or sovereign, as 


572 


HIGHWAY 


distinguished from petit or petty treason, 
which might formerly be committed against 
a subject. 4 Bl. Comm. 74, 75; 4 Steph. 
Comm, 188, 184, note. 


HIGH-WATER MARK. This term is 
properly applicable only to tidal waters, and 
designates the line on the shore reached by 
the water at the high er flood tide. But it ig 
sometimes also used with reference to the 
waters of artificial ponds or lakes, created by 
dams in unnavigable streams, and then de- 
notes the highest point on the shores to which 
the dams can raise the water in ordinary cir- 
cumstances. 


HIGH WOOD. 


HIGHER AND LOWER SCALE, 
In the practice of the English supreme court 
of judicature there are two scales regulating 
the fees of the court and the fees which so- 
licitors are entitled to charge. The lower 
scale applies (unless the court otherwise or- 
ders) to the following cases: All causes and 
matters assigned by the judicature acts to 
the queen’s bench, or the probate, divorce, 
and admiralty divisious; ail actions of debt, 
contract, or tort; and in almost all causes and 
matters assigned by the acts to the chancery 
division in which the amount in litigation is 
under £1,000. The higher scale applies in 
all other causes and matters, and also in ae- 
tions falling under one of the above classes, 
but in which the principal relief sought to be 
obtained is an injunction. Sweet. 


Timber. 


HIGHNESS. A title of honor given to 
princes. The kings of England, before the 
time of James I., were not usually saluted 
with the title of “Majesty,” but with that of 
“Highness.” The children of erowned heads 
generally receive the style of “Highness.” 


| Wharton. 


HIGHWAY. A free and public road, 
way, or street; one which every person has 
the right to use. 

“In all counties of this state, public hizh- 
ways are roads, streets, alleys, lanes, courts, 
places, trails, and bridges, laid oub or erected 
as such by the public, or, if laid out and 
erected by others, dedicated or abandoned to 
the public, or made such in actions for the 
partition of real property.” Pol. Code Cal. 
§ 2618. 

There is a difference in the shade of meaning con- 
veyed by two uses of the word. Sometimes it sig- 
nifies right of free passage, in the abstract, not 
importing anything about the character or cor- 
struction of the way. Thus, a river is called a 
“highway;” aud it hus been not unusual for con 


HIGHMWAY ACTS 


gress, In granting a privilege of building a bridge, 
to declare that it shall be a public highway. 
Again, it has reference to some system of law au- 
thorizing the taking a strip of land, and preparing 
and devoting it to the use of travelers. In this 
use itimports a road-way upon the soil, constructed 
under the authority of these laws. Abbott. 


HIGHWAY ACTS, or LAWS. The 


body or system of laws governing the laying 
out, repair, and use of highways. 


HIGHWAY CROSSING. A piace 
where the track of a railroad crosses the line 
of a highway. 


HIGHWAY-RATE. InEnglishlaw. A 
tax for the maintenance and repair of high- 
ways, chargeable upon the same property 
that is liable to the poor-rate, 


HIGHWAY ROBBERY. In criminal 
law. The crime of robbery committed upon 
or near a public highway. In England, by 
St. 23 Hen. VIII. c.1, this was made felony 
without benefit of clergy, while robbery com- 
mitted elsewhere was less severely punished. 


Tho distinction was abolished by St. 8 & 4° 


W.& M. c. 9, and in this country it has nev- 
er prevailed generally. 


HIGHWAY TAX. A tax for and ap- 
plicable to the making and repair of high- 
ways. 


HIGHWAYMAN. A bandit; one who 
rols travelers upon the highway. 


HIGLER. In English law. A hawker 
or peddler, A person whe carries from door 
to door, and sells by retail, small articles of 
provisions, and the like. 


HIGUELA. In Spanish law. A receipt 
given by an heir of a decedent, setting forth 
what property he has received from the ea- 
tate. 


HIKENILD STRHET. One of the 
four great Roman roads of Britain. More 
commonly called ‘“Ikenild Street.” 


HILARY RULES. A collection of or- 
ders and forms extensively modifying the 
pleading and practice in the English supe- 
rior courts of common law, established in 
Hilary term, 1834, Stimson. 


HILARY TERM. In English law. A 
term of court, beginning on the 11th and 
ending on the dlst of January in each year. 
Superseded (1875) by Hilary sittings, which 
begin January lith, and end on the Wednes- 
day before Easter. 


HINDENI HOMINES. 
men. 


573 


A society of | bailed to him for 4 specified purpose. 
The Saxons ranked men intv three | Ga. 1882, § 2035. 


HIRING 


classes, and valued them, as to satisfaction 


for injuries, etc., according to their class. 


The highest class were valued at 1,200s., and 
were called “tzself hindmen;” the middle 
class at 600s., and called “sexhindmen,;” the 
lowest at 200s., called “tzoyhindmen.” Their 
wives were termed “Aindas.” Brompt. Leg. 
Alfred. ¢. 12. 


HINDER AND DELAY. To hinder 
and delay is fo do something which is an at- 
tempt to defraud, rather than a successful 
fraud; to put some obstacle in the path, or 
interpose some time, unjustifiably, before the 
creditor can realize what is owed out of his 
debtor’s property. 42 N. Y. Super. Ct. 63. 


HINDU LAW. The system of native 
law prevailing among the Gentoos, and ad- 
ministered by the government of British In- 
dia. 


HIWE, or HIND. 
ant. 


HINEFARE. The loss or departure of a 
servant from his master. Domesday. 


HIPOTECA. In Spanishlaw. A mort 
gage of real property. 


HIRCISCUNDA. 


HIRE, ». To purchase the temporary 
use of a thing, or to stipulate for the labor 
or services of another. See Hirine. 

To engage in service for a stipulated re- 
ward, ag to hire a servant for a year, or la~ 
borers by the day or month; to engage a man 
to temporary service for wages. To “em- 
ploy” is a word of more enlarged significa- 
tion. A man hired to labor is employed, but 
aman may be employed in 4 work who is not 
hired. 11 N.Y. 605. 

For definitions of the various species of 
this class of contracts, under their Latin 
names, see LocaTio and following tifles- 


HIRE, 2. Compensation for the use of a 
thing, or for labor or services. 


HIREMAN. A subject. 


HIRER. One who hires a thing, or the 
labor or services of another person. 


HIRING. Hiring is a contract by which 
one person grants to another either the en- 
joyment of a thing or the use of the labor and 
industry, either of himself or his servant, 
during a certain time, for a stipulated coins 
pensation, or where one contracts for the 
labor or services of another about a thing 
Code 


A husbandry serv- 


See HEROCISOUNDA. 


Du Cange. 


HIRING 


Hiring is a contract by which one gives to 
another the temporary possession and use of 
property, other than money, for reward, and 
the latter agrees to return the same to the 
former at a future time. Civil Code Cal, 
§ 1925; Civil Code Dak. § 1103. 


HIRST, HURST. In old English law. 
A wood. Co. Litt. 48. 


HIS. The use of this pronoun in a writ- 
ten instrument, in referring toa person whose 
Christian name is designated therein by a 
mere initial, is not conclusive that the person 
referred to is a male; it may be shown by 
parol that the person intended is a female. 
71 Cal. 38, 11 Pac. Rep. 802. 


HIS EXCELLENCY. In English law. 
The title of a viceroy, governor general, am- 
hassador, or commander in chief. 

In American law. This title is given to 
the governor of Massachusetts by the consti- 
tution of that state; and it is commonly giv- 
en, as a title of honor and courtesy, to the 
governors of the other states and to the pres- 
ident of the United States. It is also cus- 
tomarily used by foreign ministers in ad- 
dressing the secretary of state in written 
communications. 


HIS HONOR. A title given by the con- 
stitution of Massachusetts to the lieutenant- 
governor of that commonwealth. Const. 
Mass. pt. 2, ¢. 2, § 2, arf. 1. 


HIS TESTIBUS. Lat. These being wit- 
nesses. The attestation clause in old deeds 
and charters. 


HIWISC. A hide of land. 


HLAF ASTA. Sax. 
hia master’s cost, 


A servant fed at 


HLAFORD. Sax. A lord. 1 Spence, 
Ch. 36, 

HLAFORDSOCNA. Sax. A lord’s pro- 
tection. Du Cange. 

HLAFORDSWICEHE, Sax. In Saxon 
law. The crime of betraying one’s lord, 


(proditio domini;) treason. 
Law, 59, 301. 


HLASOCNA. Sax. 
law. Du Cange. 


HLOTHBOTE. In Saxon law. A fine 
for being present at an unlawful assembly. 
Spelman. 


HLOTHEH. InSaxon law. Anunlawful 
assembly from eight to thirty-five, inclusive. 
Cowell. 


Crabb, Eng. 


The benefit of the 


574 


a 


HOGHENUYNE 


HOASTMEN. In English law. An 
ancient gild or fraternity at Newcastle- 
upon-Tyne, who cealt in sea coal. St. 21 
Jace Tse ds 


HOBBLERS. Im old English law. 
Light horseinen or bowmen; also certain ten- 
ants, bound by their tenure to maintain a 
little light horse for giving notice of any in- 
vasion, or such like peril, towards the sea- 
side. Camden, Brit. 


HOC, Lat, This. Hoe intuéte, with 
this expectation. Hec loco, in this place. 
Hoe nomine, in this name. Hoc titulo, un- 
der this title. oc voce, under this word. 


HOC QUIDEM PERQUAM DURUM 
EST, SED ITA LEX SCRIPTA EST. 
Lat. (This indeed is exceedingly hard, but 
so the law is written; such is the written or 
positive law.) An observation quoted by 
Blackstone as used by Ulpian in the civil 
law; and applied to eases where courts of 
equity have no power to abate the rigor of 
the law. Dig. 40, 9, 12, 1; 3 Bl. Comm. 430. 


HOC PARATUS EST VERIPFI- 
CARE, Lat. This he is ready to verify. 


Hoe servabitur quod initio convenit. 
This shall be preserved which is useful in 
the beginning. Dig. 50, 17, 23; Bract. 730, 


HOCCUS SALTIS. A hoke, hole, or 
lesser pit of salt. Cowell. 


HOCK - TUESDAY MONEY. This 
was a duty given to the landlord that his 
tenants and bondmen might solemnize the 
day on which the English conquered the 
Danes, being the second Tuesday after Eas- 
ter week. Cowell. 


HOCKETTOR, or HOCQUETEUR. 
A knight of the post; a decayed man; a bas- 
ket carrier. Cowell. 

HODGE-PODGE ACT. A name ap- 


plied to a statute which comprises a medley 
of incongruous subjects. 


HOGA. In old English law. A hill or 
mountain. In old Engiish, a how. Grene 
hoga, Grenehow. Domesday; Spelman. 


HOGASTER. In old English law. A 
sheep of the second year. Fleta, lib. 2, ¢. 
79, §§ 4,12. A young hog. Cowell. 

HOGGUS, or HOGIETUS. A hog or 
swine. Cowell. 

HOGHENHYNE. In Saxon law. A 


house-servant. Any stranger who lodged 
three nights or more at w man’s house in a 


HOGSHEAD 


decennary was called “hoghenhyne,” and 
his host became responsible for his acts as 
for those of his servant, 


HOGSHEAD. A measure of a capacity 
contain‘ng the fourth part of a tun, or sixty- 
three gallons. Cowell. <A large cask, of 
indefinite contents, but usually containing 
from one hundred to one hundred and forty 
gallons. Webster. 


HOLD, v. 1. To possess in virtue of a 
lawful title; as in the expression, common 
in grants, “to have and to hold,” or in that 
applied to notes, “the owner and holder.” 

2. To be the grantee or tenant of another; 
to take or have an estate from another. 
Properly, to have an estate on condition of 
paying rent, or performing service. 

8. To adjudge or decide, spoken of a court, 
particularly to declare the conclusion of law 
reached by the court as to the legal effect of 
the facts disclosed. 

4, To maintain or sustain; te be under the 
necessity or duty of sustaining or proving; 


it is said that rby “holds the af- | 
as when it is sai it a party “holds the a 


firmative” or uegative of an issue in a cause, 

5. To bind or obligate; to restrain or con- 
strain; to keep in custody or under an ob- 
ligation; as in the phrases “hold to bail,” 
“hold for court,” “held and firmly bound,” 
etc, 

6. To administer; to conduct or preside 
at; to convoke, open, and direct the opera- 
tions of; as to hold a court, hold pleas, ete. 

7. To prosecute; to direct and bring about 
officially; to conduct according to law; as 
to hold an election. 

8. To possess; to occupy; to be in posses- 
sion and administration of; as to hold oftice. 


HOLD, n. In old law. Tenure. A word 
constantly occurring in conjunction with 
others, as freehold, leasehold, copyhold, etc., 
but rarely met with in the separate form. 


HOLD OVER. To bold possession after 
the expiration of a term or lease. To retain 
possession of property leased, after the end 
of the term. To continue in possession of 
an office, and continue to exercise its fune- 
tions, afler the end of the ollicer’s lawful 
term. 


HOLD PLEAS. 
8 Bl. Comm. 35, 298. 


HOLDER. The holder of a bill of ex- 
change, promissory note, or check is the per- 


To hear or try causes. 


son who has legally acquired the possession | 


of the same, from a person capable of trans- 
ferring it, by indorsement or delivery, and 


575 


| for 


and for value, and that at the time it was 
| 


HOLOGRAFO 


who is entitled to receive payment of the in- 
strument from the party or parties liable ta 
meet it. 


HOLDER IN DUE COURSE, in En- 
glish law, is “a holder who has taken a bill of 
exchange (check or note) complete and reg- 
ular on the face of it, under the following 
conditions, namely: (a) That he became 
the holder of it before it was overdue, and 
without notice that it had been previously 
dishonored, if such was the fact. (0) That 
he took the bill (check or note) in good faith 


negotiated to him he had no notice of any 
detect in the title of the person wlio nego- 
tiated it.” Bills of exchange act, 1882, (45 
& 46 Vict. c. 61, § 29.) 


HOLDES. Sax. InSaxonlaw. <A mil- 
itary commander. Spelman. 
HOLDING. In English law, A piece 


of Jand held under a lease or similar tenancy 
agricultural, pastoral, or similar pur- 


| poses. 


| not absolutely necessary. 


The tenure or nature of 
the right given by the superior to the vassal. 
Bell. 


HOLDING OVER. A holding beyond 
a tern; a continuing in possession after the 
expiration of a term. ‘The act of keeping 
possession of premises leased, after the ex- 
piration of the term of the lease, without 
the consent of the landlord; or of an office 
after the expiration of the incumbent’s legal 
term. 

HOLDING UP THE HAND. In 
criminal practice. A formality observed in 


the arraignment of prisoners. Held to be 
1 W. Bi. 3, 4, 


HOLIDAY. A religions festival; a day 
set apart for commemoraling some impor- 
tant aventin history ;a day of exemption from 
labor. Welster. A day upon which the 
usual operations of business are suspended 
and the courts closed, and, generally, no legal 
process is served. 


HOLM. An island ina river or the sea. 
Spelman. 

Plain grassy ground upon water sides or 
in the waler. Blount. Low ground inter- 
sected with streams. Spelman. 


HOLOGRAFO,. In Spanish law. A 
| holograph. An instrument (particularly a 
will) wholly in the handwriting of the per- 
aon executing it; or which, to be valid, must 
be so written by his own hand, 


HOLOGRAPH 


HOLOGRAPH. A will or deed written 
entirely by the testator or granter with his 
own hand. 


HOLT. Sax. In old English law. A 
wood or grove. Spelman; Cowell; Co. Litt. 
4b. 


HOLY ORDERS. In ecclesiastical law. 
The orders of bishops, (including archbish- 
ops,) priests, and deacons in the Church of 
England. The Roman canonists had the or- 
ders of bishop, (in which the pope and arch- 
bishops were included,) priest, deacon, sub- 
deacon, psulmist, acolyte, exorcist, reader, 
ostiarius. & Steph. Comm, 55, and note a. 


HOMAGE. In feudal law. <A service 
(or the ceremony of rendering it) which a 
tenant was bound to perform to his lord on 
receiving investiture of a fee, or succeeding 
to it as heir, in acknowledgment of the ten- 
ure. It is described by Littleton as the most 
honorable service of reverence that a free 
tenant might do to his lord. ‘The ceremony 
wasusfollows: The tenant, being ungirtand 
with bare head, knelt before the lord, the latter 
sitting,and held his hands extended and joined 
between the hands of the lord, and said: “TI 
become your man [fomo] from this day for- 
ward, of life and limb and earthly honor, and 
to you will be faithful and loyal, and bear 
you faith, for the tenements that I claim to 
hold of you, saving the faith that I owe unto 
oursovereign lord the king, so help me God.” 
The tenant then received a kiss from the 
lord, Homage could be done only to the lord 
himself. Litt. § 85; Glanv, lib. 9, ce. 1; 
Bract. fols. 776, 783-80; Wharton. 

“Homage” is to be distinguished from 
“fealty,” another incident of feudalism, and 
which consisted in the solemn oath of fidelity 
made by the vassal tothe lord, whereas hom- 
age was merely an acknowledgment of ten- 
ure, If the homage was intended to include 
fealty, it waa called “liere homage;” but 
otherwise it was called “simple homage.” 
Brown, 


HOMAGE ANCESTRAL. In feudal 
law. Homage was called by this name where 
amanand his ancestors had immemorially 
held of another and his ancestors by the 
service of homage, whieh bound the lord to 
warrant the title, and also to hold the tenant 
clear of all services to superior lords. If the 
tenant aliened in fee, his alienee was a ten- 
ant by homage, but not by homage ancestral. 
Litt. § 143; 2 Bl. Comm. 500, 


576 


HOMBRE BUENO 


HOMAGE JURY. A jury in a court- 
baron, consisting of tenants that do homage, 
who are to inquire and make presentments 
of the death of tenants, surrenders, admit- 
tances, and the like, 


HOMAGE LIEGE. That kind of hom- 
age which was due to the sovereign alone ag 
supreme lord, and which was done without 
any saving or exception of the rights of ether 
lords. Spelman. 


HOMAGER. One who does or is bound 
todo homage. Cowell. 


HOMAGIO RESPECTUANDO. A 
writ to the escheator commanding him to de 
liver seisin of lands to the heir of the king's 
tenant, notwithstanding his homage not 
done. Fitzh. Nat. Brev. 269. 


HOMAGIUM. Homage, {g. *.) 


HOMAGIUM LIGIUM. Liege hom- 
age; that kind of homage which was due to 
the sovereign alone as supreme lord, and 
which was done without any saving or ex- 
ception of the rights of other lords. Spelman. 
So called from ligando, (binding,) because it 
could not be renounced like other kinds of 
homige, 


Homagium, non per procuratores nec 
per literas fieri potuit, sed in propria 
persona tam domini quam tenentis capi 
debet et fieri. Co. Litt. 68. Homage can- 
not be done by proxy, uor by letiers, but 
must be paid and received in the proper per- 
son, as well of the lord as the tenant. 


HOMAGIUM PLANUM. In fendal 
law. Vain homage; a species of homaga 
which bound him who did it to nothing more 
than fidelity, without any obligation either of 
military service or attendance in the courts 
of his superior, 1 Robertson’s Car. V., Ap- 
pendix, note 8. 


HOMAGIUM REDDERE. To re- 
nounce homage. This was when a vassal 
made a solemn declaration of disowning and 
defying his lord; for which there was a set 
form and method prescribed by the feudal 
laws. Bract. |. 2, ¢. 35, § 35. 


HOMAGIUM SIMPLEX. In feudal 
luw. Simple homage; that kind of homage 
which was merely an acknowledyment of 
tenure, with a saving of the rights of other 
lords. Harg. Co. Litt. note 18, lib. 2. 


HOMBRE BUENO. In Spanish law. 
The judge ofadistrict. Also an arbitrator 
chosen by Lhe parties to a suit. Also a man 


HOME 


fn good standing; one whe Is competent to 
teatify in a suit. 


HOME. Whena person voluntarily takes . 


up his abode in a given place, with intention 
tovemain permanently, or for an indefinite 
period of time, or without any present inten- 
tion to remove there!rom, such place of abode 
becomes his residence or home. 43 Me. 418, 
This word has not the same technical mean- 
ing as “doinicile.” 19 Me. 301. 


HOME, or HOMME. L. Fr. 
man. 


Man; a 


Home ne sera puny pur suer des 
briefes en court le rey, soit il a droit ou 
atort. A man shall not be punished for 
suing out writs in the king’s court, whether 
he be right or wrong. 2 Inst. 228. 


HOME OFFICE The department of 
atete through which the English sovereign 
administers most of the internal affairs of 
the kingdom, especially the police, and com- 
municates with the judicial functionaries. 


HOME PORT. A port in a state in 
which the owner of a vessel resides, 


HOMESCKEN, HOMSOKEN. See 
HAMESOKEN. 
HOMESTALL. A mansion-house. 


HOMESTEAD. The home place; the 
place where the home is. It is the home, 
the lousa and the adjuining Jand. where 
the head of the family dwells; the home 
farm. 386 N. H. 166. 

The fixed residence of the head ofa family, 
with the land and buildings surrounding the 
inain house, 


EOMESTEHATD CORPORATIONS. 
Corporations organized fur the purpose of 
acquiring lands in large tracts, paying off in- 
eumbrances thereon, improying and subdi- 
viding them inte homestead lots or parcels, 
and distributing them among the sharehoid- 
ers, and for the actumulation of a fund for 


porations,” and must not have a corporate 
existence for a longer period than ten years. 
Civil Code Cal. § 567. 


HOMESTEAD EXEMPTION LAWS. 
Laws passed in most of the states allowing 
a householder or head of a family to desig- 
nate a houce and land as his homestead, and 
exempting the same homestead [rom execu- 
tien for his general debts. 

4M.DICT.LAW—37 


577 


HOMLCIDIUM 


HOMICIDAL. Pertaining to homicide; 
relating to homicide; impelling te homicide, 
as a homicidal mania. 


HOMICIDE. The killing any human 
ereature. 4 Bl. Comm. i177. Thea act of a 
human being in killing another human being. 

*Honicide," as a term, does not import crimes. 
It includes crimes, such, for instance, as murder 
and manslaughter. Buta homicide may bo inno- 
cent; may even be in the performances of »duty. 
The execution of the sentence of death upon a 
criminal by the officer of the law is a homicide. 
The term “homicide” embraces sll man-killing. 
1 Parix. Crim. R. 182, 186. 

Justifiable homicide is such as is commit- 
ted intentionally, but without any evil design, 
and undersuch circumstances of necessity or 
duty as render the act proper, and relieve the 
party from any shadow of blame; as wherea 
sheriff lawfully executes a sentence of death 
upon a malefactor, or where the killing takes 
place in fle endeavor to prevent the commis- 
sion of a felony which could not be otherwise 
avoided. 

Hxcusable homicide is such as is commit- 
ted through misadventure or accident, with- 
out any willful or malicious intention; or by 
necessity, in self-defense, 

Felonious homicide (which may be either 
murder or manslaughter) is that committed 
without justification or excuse in law, t. e, 
with malice and intention, and under such 
circumstances as to make it punishable. 


HOMICIDE PER INFORTUNIUM, 
In criminal law. Homicide by misfortune, 
or accidental homicide; as where a man do- 
ing a lawful act, without any intention of 
hurt, unfortunately kilis another; a species 
of excusable homicide. 4 Bl. Comm, 182; 4 


| Steph. Comm. 101. 


HOMICIDE PER MISADVENTURE, 
See Homicips PER INKORTUNIUM. 


HOMICIDE SE DEFENDENDO. In 
criminal law. Homicide in seif-defense; the 
killing of a person in self-defense upon asud- 
den affray, where the slayer had no other possi- 


ble (or, at least, probable) means of escaping 
such purposes, are known as “homestead cor- | 


from his assailant. 4 Bl. Comm. 183-186; 
4 Steph. Comm. 103-105. <A species of ex- 
cusable homicide. Id.; 1 Russ. Crimes, 660. 


HOMICIDIUM. Lat, Homicide, (¢. v.) 

Homicidium ex jgustitia, homicide in the 
adminisiration of justice, or in the execution 
of the sentence oi the law. 

Homicidium ex iecessitate, homicide from 


inevitable necessity, as for the protection of il 


one’s person or property. 


HOMICIDIUM 


Homicidium ex casu, homicide by acci- 
dent. 

Homicidium ex voluntate, voluntary or 
willful homicide. Bract. fols. 1206, 121. 


HOMINATIO. The mustering of men; 
the doing of homage. . 


HOMINE CAPTO IN WITHERNAM- 
IUM. A writ totake him that had taken 
any bond man or woman, and led him or her 
out of the country, so that he or she could 
not be replevied according to law. Reg. 
Orig. 79. 


HOMINE ELIGENDO. In old English 
law. <A writ directed to a corporation, re- 
quiring the members to make choice of a man 
to keep one part of the seal appointed for 
statutes merchant, when a former is dead, 
according to the statute of Acton Burnell. 
Reg. Orig. 178; Wharton. 


HOMINE REPLEGIANDO. In En- 
glish law, A writ which lay to replevy a 
man out of prison, or out of the custody of 
any private person, in the same manner that 


chattels taken in distress may be replevied. , 


Brown. 


HOMINES. Lat. In feudal law. Men; 
feudatory tenants who claimed a privilege 
of having their causes, ete., tried only in 
their lord’s court. Paroch. Antiq. 15. 


HOMINES LIGITI. In feudal law. 
Liege men; feudal tenants or vassals, espe- 
cially those who held immediately of the 
sovereign. 1 Bl. Comm, 367, 


Hominum causa jus constitutum est. 
Law is established for the benefit of man. 


HOMIPLAGIUM. 
The maiming of a man. 


HOMME. Fr. Man;aman. Thisterm 
is defined by the Civil Code of Louisiana to 
include a woman. Article 3522, nn. 1, 2. 


HOMMES DE FIEF. Fr. In feudal 
law. Men of the fief; feudal tenants, the 
peers in the lords’ courts. Montesq., Esprit 
des Lois, liy. 28, c. 27. 

HOMMES FEODAUX. Fr. In feudal 
law. Feudal tenants; the same with hom- 
mes de fief, (q- v.) Montesq., Esprit des 
Lois, liv. 28, e. 36. 

HOMO. Lat. A man; a human being, 
male or female; a vassal, or feudal tenant; 
a retainer, dependent, or servant. 


HOMO CHARTULARIUS. A slave 
manumitted by charter. 


In old English law. 
Blount. 


578 


HOMOLOGACION 


HOMO COMMENDATUS. In feudal 
law. One who surrendered himself into the 
power of another for the sake of protection 
or support. See COMMENDATION. 


HOMO ECCLESIASTICUS. A church 
vassal; one who was bound to serve achurch, 
especially to do service of an agricultural 
character. Spelman. 


HOMO EXERCITALIS. A manof the 
army, (exercitus ;) a soldier. 


HOMO FEODALIS. A vassal or ten- 
ant; one who held a fee, (feodum,) or part of 
afee. Spelman. 


HOMO FISCALIS, or FISCALINUS, 
A servant or vassal belonging to the treasury 
or fiscus. 

HOMO FRANCUS. Inold English law. 
A freeman. A Frencliman. 


HOMO INGENUUS. 
free and lawful man. 


HOMO LIBER. A freeman. 


HOMO LIGIUS. A liege man; a sub- 
ject; a king’s vassal, The vassal of a sub 
ject. 


HOMO NOVUS, In feudal law. A 
new tenant or vassal; one who was invested 
with a new fee. Spelman. 


A fres man. A 
A yeoman. 


HOMO PERTINENS. In feudal law. 
A feudal bondman or vassal; one who be 
longed to the soil, (qui glebe adacribitur.) 


Homo potest esse habilis et inhabilis 
diversis temporibus. 5 Coke,98, Aman 
may be capable and incapable at different 
times. 


HOMO REGIUS. A king’s vassal, © 


HOMO ROMANUS. A Roman. An 
appellation given to the old inhabitants of 
Gaul and other Roman provinces, and re- 
tained in the laws of the barbarous nations. 
Spelman, 


HOMO TRIUM LITTERARUM. A 
man of the three letters; that is, the three 
letters, “f,” “u,” “r;” the Latin word fur 
meaning “thief.” 


Homo vocabulum est naturs; por- 
sona juris civilis. Man (homo) is a term 
of nature; person (persona) of civil law. 
Calvin. 


HOMOLOGACION,. In Spanish law, 
The tacit consent and approval inferred by 
law from the omission of the parties, for the 


HOMOLOGARE 


space of ten days, to complain of the sen- 
, tences of arbitrators, appointment of syndics, 
or assignees of ingolvents, settlements of 
fuccessicns, etc. Aliso the approval given 
by the judge of certain acts and agreements 
for the purpose of rendering them more bind- 
ing and executory. Lscriche. 


HOMOLOGARE. in thecivillaw. To 
confirm or approve; to consent or assent; to 
confess. Calvin. 


HOMOLOGATE. In modern civil law. 
To approve; to confirm; as a court Aomolo- 
gates a proceeding. See HoMOLOGATION. 
Literally, to use the same toords with an- 
Other; to say the like. 9 Mart. {La.) 324. 
To ussent to what another says or writes. 


HOMOLOGATION. In the civil law. 
Approbation; confirmation by a court of 
justice; a judgmont which orders the execu- 
tion of some act. Merl. Répert. The term 
ig also used in Louisiana. 

In English law. An estoppel tn pais. 
L. R. 3 App. Cas. 1026, 

In Scotch law. An act by which a per- 
#on approves of a deed, the edect of which 
is to render that deed, though in itself defect- 
ive, binding upon the person by whom it is 
homologated. Bell, Confirmation of a yoid- 
able deed. 


HOMONYMIs. A term applied in the 
elvil law to cases where a law was repeated, 
or Jail dewn in the same terms or to the 
same elfect, more than once. 
ation and repetition. 2 Kent, Comm. 489, 
note, 


HONDHABEND. 
hand. See HANDIABEND. 


HONESTE VIVERE. Lat. ‘lo tive 
honorably, creditably, or virtuously. One of 
the three general precepts to which Justinian 
reduced the whole doctrine of the law, (Inst. 
1, 1, 8; Bract. fols. 3, 88,) the ethers being 
alierum non ladere, (not to injure others,} 
and suum cutgue tribuere, (to render to avery 
man his due.) 


HONESTUS. Of good character or 
standing. Coram duobus vel pluribus viris 
legalibus et honestis, before two or more 
lawful and good men, Braet. fol. 61. 


Sax, Having in 


HONOR, ce. Toaccepta bill of exchange, 
or to pay a note, check, or accepted bill, at 
maturity and according to its tenor, 


HONOR, #. In Englishlaw. A seign- 
jory of several manors held under one 


573 


Cases of iter- | 


HONTFONGENETHEF 


baron or lerd paramount. Alsv those dig- 
nities or privileges, degrees of nobility, 
knighthood, and other titles, which flaw from 
the crowa as the fountain of honor, Whar- 
ton. 

In American law. The customary title 
of courtesy given to judges of the higher 
courts, and occasionally to some other oflicers; 
as “his honor,” “your honor.” 


HONOR COURTS. Tribunals held 
within honors or seigniories. 


HONORABLE. A title of courtesy giv- 
en in England to the younger children of 
earls, and the children of viscounts and bar 
ons; and, collectively, to the house of com- 
mons. In America, the word is used as a 
title of courtesy for various classes of offi- 
cials, but without any clear lines of distine- 
tion. 


HONORARIUM, Inthecivillaw. An 
honorary or free gift; a gratuitous payment, 
as distinguished from hire or compensation. 
fur service; a lawyer's or counsellor’s fee. 
Dig. 50, 13, 1, 10-12. 

An honorartum is a voluntary donation, in con- 
sideration of services which admit of no compen- 
sation in money; in particular, to advocates at law, 
deemed to practice for honor or influence, and not 
forfees. 14 Ga. 89. 


HONORARIUM JUS. In Roman law. 
The law of the pretors and the edicts of the 
wediles. 


HONORARY CANONS. Those with 
out emolument, 3 & 4 Vict. c. 113, § 23. 


HONORARY FEUDS. Titles of nobil- 
ity, descendible te the eldest son, in exclusion 
of allthe rest, 2 Bl. Comm. 56, 


HONORARY SERVICES. In feudal 
law. Special services to be rendered to the 
king in person, characteristic of the tenure 
by grand serjeanty; such as to carry his ban- 
ner, his sword, or the like, or to be his but- 
ler, champion, or other officer, at his corona 
tion. Litt. § 153; 2 Bi. Comm. 73, 


HONORARY TRUSTEES. Trustees 
to preserve contingent remaindera, so called 
because they are bound, in henor only, to de 
cide on the most proper and prudential course, 
Lewin, Trusts, 408. 


HONORIS RESPECTUM., 
of honor or privilege. 


By reason 
Sea CHALLENGE. 


HONTFONGENETHE®, In Saxon 
law. A thief taken with hondhabend; i. ¢.,. 
having the thing stolenin his hand. Cowell. 


HONY 580 


HONY. L. Fr. Shame; evil; disgrace. | king’s subjects. 
Hany soit qui mal y pense, evil be to him | 


who evil thinks. 
HOO. Ahill. Co. Litt. 5b. 


HOOKLAND. Land plowed and sown 
avery year. f 


¥ 


HOPCON. A valley. Cowell. 


HOPE. In old English law. 
Co. Litt. 40. 


HOPPO, A Chinese term for a collector; 
an overseer of commerce, 


A valley. 


HORA AURORA. In old English law. 
The morning bell, as ignitegium or coverfeu 
(curfew) was the evening bell. 


Hora non est multum de substantia 
negotii, licet in appollo de ea aliquando 
fiat mentio. The hour is not of much con- 
sequence as to the substance of business, al- 
though in appeal it is sometimes mentioned. 
1 Bulst. 82. 


HORA JURIDIC, or JUDICIA. 
Tiours during which the judges sat in court 
to attend to judicial business. 


HORCA. In Spanish law. <A gallows; 
the punishment of hanging. White, New 
Recop. b. 2, tit. 19, c. 4, § 1. 


HORDA. Inold records. A cow incalf. 
HORDERA. A treasurer. 


HORDERIUM. Inold Englishlaw. A 
hoard; a treasure, or repository. Cowell. 


HORDEUM. Im old records. Barley. 
Hordeum palmate, beer barley, as distin- 
guished from common barley, which was 
called “hordewm quadragesimale.” Blount. 


HORN. In old Scotch practice. A kind 
of trumpet used in denouncing contumacious 
persons rebels and outlaws, which was done 
with three blasts of the horn by the king’s 
sergeant. This was called “putting to the 
horn;” and the party so denounced was said 
to be “atthe horn.” Bell. 


HORN-BOOK. A primer; a book ex- 
vlaining the rudiments of any science or 
branch of knowledge. The phrase “horn- 
book law” is a colloquial designation of the 
rudiments or most familiar principles of law. 


HORN TENURE. In old English law. 
Tenure by cornage; that is, by the service of 
winding a horn when the Scots or other ene- 
mies entered the land, in order to warn the 


Du Cange. 


HORSE GUARDS 


This was a species of grand 
serjeanty. Litt. § 156; 2 Bl. Comm. 74. 


HORN WITH HORN, or HORN 
UNDER HORN. The promiscuous feeding 
of bulls and cows or all horned beasts that 
are allowed to run together upon the same 
common. Spelman. : 


HORNGELD. Sax. In old English law. 
A tax withina forest, paid for horned beasts. 
Cowell; Blount, 


HORNING. In Seotch law. “Letters 
of horning” is the name given to a judicial 
process issuing on the decree of a court, by 
which the debtor is summoned to perform 
his obligation in terms of the decree, the con- 
sequence of his failure to do so being liability 
to arrest and imprisoninent. It was ancient- 
ly the custom to proclaim a debtor who bad 
failed to obey such process a rebel or outlaw, 
which was done by three blasts of the horn 
by the king’s sergeant in a public place. 
This was called “putting to the horn,” 
whence the name. 


HORREUM. Lat. A place for keeping 
grain; agranary.” A place for keeping fruits, 
wines, and goods generally; a store-houge. 
Calvin.; Bract. fol. 48. 


HORS. L. Fr. Out; out of; without. 


HORS DE SON FEE. L. Fr. Out of 
his fee. In old pleading, this was the name 
of a plea in an action for rent or services, by 
which the defendant alleged that the land in 
question was out of tle compass of the plain- 
tiff’s fee. 


HORS PRIS. L. Fr. Except. Liter- 
ally translated by the Scotch “out taken.” 


HORS WEALH. In old English law. 
The weall, or Briton who had care of the 
king’s horses. 


HORS WEARD. In old English law. 
A service or cerece, consisting in watching 
the horses of the lord. Ane. Inst. Eng. 


HORSE. Untila horse has attained the 
age of four years, he is called a colt, 1 Rusa. 
& R. 416. 


The word “horse” is used in a quasi generic 
sense, to include every description of the male, in 
contradistiuction to the female or mare, whether 
stallion or gelding. 38 Tex. 555. 


HORSE GUARDS. The directing pow- 
er of the military forces of the kingdom of 
Great Britain. The commander in chief, or 
general commanding the forces, is at the head 
of this department. It is subordinate to tle 


HORTUS 
rt office, but the relations between them 
are complicated. Wharton. 


HORTUS. Lat. In the civil law. A 
garden. Dig. 32, 91, 5. 


HOSPES. Lat. A guest. 8 Coke, 82. 
HOSPES GENERALIS. A great 
chamberlain. 


HOSPITAL. An institution for the re- 
ception and care of sick, wounded, infirm, or 
aged persons: generally incorporated, and 
then of the class of corporations called “elee- 
mosynary” or “charitable.” 


HOSPITALLERS. The knights of a re- 
ligions order, so called because they built a 
hospital at Jerusalem, wherein pilgrims were 
received. All their lands and goods in Kng- 
land were given to the sovereign by 32 Hen. 
VIII. c. 24, 


HOSPITATOR. A host or entertainer. 

Hospitater communis. An innkeeper. 
8 Coke, 32. 

Hospitator magnus. 
camp. 


HOSPITIA. Inns. Hospitia communia, 
common inns. Heg. Orig. 105. Hospitia 
eurie, inns of court. Hospitia canceliaria, 
inns of chancery. Crabb, Eng. Law, 428, 
429; 4 Reeve, Eng. Law, 120. 


HOSPITICIDE. One that kills his guest 
or host. 


HOSPITIUM. 


HOSPODAR. A Turkish governor in 
Meldayia or Wallachia. 


HOST. L, Fr. 
A military expedition; war. 


HOSTAGE. <A person who is given into 
the possession of the enemy, in a public war, 
his freedom (or life) to stand as security for 
the performance of some contract or promise 
made by the belligerent power giving the 
hostage with the other, 


The marshal of a 


An inn; a household. 


Anarmy. Britt. c. 22. 
Kellam, 


HOSTELAGIUM. In old records. A 
right to receive lodging and entertainment, 
anciently reserved by lords in the houses of 
their tenants. Cowell. 


EHOSTELER. An innkeeper. Now ap- 
plied, under the form “ostler,” to these who 
look to a puest’s horses, Cowell. 


HOSTESS. Enemies. Hostes hument 
generis, enemies of the human race; 4, e., pi- 
Tales. 


581 


HOTCHPOT 


Hostes sunt qui nobis vel quibus nos 
bellum decernimus; cexteri proditores 
vel predones sunt, 7 Coke, 24, Enemies 
are those with whom wedeclare war, or who 
declare it against us; all others are traitors 
or pirates. 


HOSTIA. In old reeords. The host. 
bread, or consecrated wafer, In the eucha- 
rist. Cowell. 


HOSTICIDE. One who kills an enemy. 


HOSTILARIA, HOSPITALARIA. A 
place or room in religious houses used for 
the reception of guests and strangers. 


HOSTILE. Having the character of an 
enemy; standing inthe relation of an enemy. 
See 1 Kent, Comm. ec. 4. 


HOSTILE EMBARGO. One laid upon 
the vessels of an actual or prospective enemy. 


HOSTILE WITNESS. A witness who 


| manifests so much hostility or prejudice un- 
| der examination in chief that the party who 


has called him, or his representative, is al- 
lowed to cross-examine him, 7. ¢., fo treat 
him as though he had been ealled by the op- 
posite party. Wharton. 


HOSTILITY. In thelawof nations. A 
state of open war. “At the breaking out of 
hostility.” 1 Kent, Comm. 60. 

An act of open war. “When hostilities 
have commenced.” Id. 56. 

A hostile character. “Hostility may at- 
tach only to the person.” Id. 


HOT-WATER ORDEAL. In old En+ 
plish law. This was atest, in cases of ace 
cusation, by hot water; the party accused 
and suspected being appointed by the judge 
to put his arms up te the elbows in seeth- 
ing hot water, which, after sundry prayers 
and invocations, he did, and was, by the ef- 
feet which followed, judged guilty or inno- 
eent. Wharton. 


HOTCHPOT. Theblending and mixing 
property belonging to different persons, in 
order to divide it equally. 2 B],Comm. 190, 

Anciently applied to the mixing and blend- 
ing of lands given to one daughter in frank 
matriage, with those descending to her and 


K 


her sisters in fee-simple, for the purpose of L 


dividing the whole equally among them; 
without which the daughter who held in 
frank marriage could have no share in the 
lands in fee-simple. Litt. §§ 267, 268; Co. 
Litt. 177¢,; 2 Bl. Comm. 190. 

Hotechpot, or the putting in hotchpot, ig ap- 


HOTEL 


plied in modern law to the throwing the 
amount of an advancement made toa par- 
ticular child, in real or personal estate, into 
the common stock, for the purpose of 2 more 
equal division, or of equalizing the shares 
of all thechildren. 2 Kent, Comm. 421, 422. 
This answers to or resembles the collatio 
bonorum, or collation of the civil law. 


HOTEL. An inn; a public house or tav- 
ern; a house for entertaining strangers or 
travelers. 54 Barb, 316; 2 Daly, 15; 46 Mo. 
504, 


582 


HOUR. The twenty-fourth part of a nat- | 


ural day; sixty minutes of time. 


HOUR OF CAUSE. InScotch practice. 
The hour when a court is met. 3 How. 
State Tr. 603. 


HOUSE. 1. A dwelling; a building de- 
signed for the habitation and residence of men. 

“Honse” means, presumptively, a dwelling- 
house; a building divided into floors and apart- 
ments, with four walls, a roof, and doors and 
chimneys; but it does not necessarily mean pre- 
eisely this. 14 Mees. & W. 181; 7 Man. & G. 122. 

“House” is not synonymous with “dwelling- 
house.” Whilo the former is used in a broader 
and more comprehensive sense than the latter, it 
has a narrower and more restricted meaning than 
the word “building.” 46 N. H, 61. 

In the devise of a house, the word “house” is 
synonymous with “messuage,” and conveys all 
that comes within the curtilage. 4 Pa. St. 93, 

2, A legislative assembly, or (where the bi- 
cameral system obtains) one of the two 
branches of Lhe legislature; as the “house of 
lords,” “house of representatives.” Also a 
quorum of a legislative body. See 2 Mich. 
287. 

4. The name “house” is also given tosome 
collections of men other than legislative bod- 
jes, to some publie institutions, and (colloqui- 
ally) to mercantile firms or joint-stock com- 
panies. 

TIOUSE-BOTH. A species of estovers, 
belonging to a tenant for life or years, con- 
sisting in the right to take from the woods 
of the lessor or owner such timber as may be 
necessary for making repairs upon the house. 
See Co. Litt. 415. 


HOUSE-BURNING. See ARSON. 


HOUSE-DUTY. A tax on inhabited 
houses imposed by 14 & 15 Vict. c. 36, in lieu 
of window-duty, which was abolished. 


HOUSE OF COMMONS. One of the 
constituent houses of the British parliament, 
eomposed of representatives of the counties, 
tities, and buroughs. 


HOUSEHOLD GOGDS 


HOUSE OF CORRECTION. A re 
formatory. A place for the imprisonment of 
juvenile offenders, or those who have com- 
mitted crimes of lesser magnitude. 


HOUSE OF ILL FAME. A bawdy- 
house; a brothel; a’ dwelling allowed by its 
chief occupant to be used as a resort of per- 
sons desiring unlawful sexual intercourse. 
33 Conn, 91. 


HOUSE OF LORDS. Theupper cham- 
ber of the British parliament. It comprises 
the archbishops and bishops, (called “Lords 
Spiritual,”) the English peers sitting by vir- 
tue of hereditary right, sixteen Scotch peers 
elected to represent the Scotch peerage under 
the act of union, and twenty-eight Irish peers 
elected under similar provisions. The house 
of lords, a8 a judicial body, has ultimate ap- 
pellate jurisdiction, and may sit as a court 
for the trial of impeachments. 


HOUSE OF REFUGE. A prison for 
juvenile delinquents. A house of correction 
or reformatory. 


HOUSE OF REPRESENTATIVES. 
The name of the body furming the more pop- 
ular and numerous branch of the congress of 
the Un'ted States; also of the similar branch 
in many of the state legislatures. 


HOUSEAGE. A fee paid for housing 
goods by a carrier, or at a wharf, ete. 


HOUSEBREAKING. In criminal law. 
Breaking and entering adwelling-house with 
intent tocommit any felony therein. If done 
by night, it comes under the definition of 
“burglary.” 

HOUSEHOLD. A family living togeth- 
er. 18 Johns. 400, 402. Those who dwell 
under the same roof and compose a family. 
Webster. A man’s family living together 


| constitutes his household, though he may 


have gone to another state. 
Belonging to the house and family; domes- 
tic. Webster. 


HOUSEHOLD FURNITURE. This 
term, in a will, includes all personal chattels 
that may contribute to the use or conven- 
ience of the householder, or the ornament of 
the house; as plate, linen, china, both useful 
and ornamental, and pictures. Lut goods in 
trade, books, and wines will not pass bya 
bequest of househoid furniture. 1 Rop. Leg. 
203. 

HOUSEHOLD GOODS. These words, 
in a will, include everything of a permanent 
nature (i. e., articles of household which are 


HOUSEHOLD STUFF 


not consumed in their enjoyment) that are 
ased in or purchased or otherwise acquired 
by a testatorfor his house. 1 Rop. Leg. 191. 


HOUSEHOLD STUFF. This phrase, 
in a will, includes everything which may be 
used for the convenience of the house, as 
tables, chairs, bedding, and the like. But 
apparel, books, weapons, tools for artificers, 
cattle, victuals, and closes in action will not 
pass by those words, unless the context of the 
will clearly show a contrary intention. 1 
Rop. Leg. 206. 


HOUSEHOLDER. The occupier of a 
house. Brande. More correctly, one who 
keeps house with his family; the head or mas- 
ter of a family. Webster; 18 Johns. 302. 
One who has a household; the head of a 
household. 


HOUSEKEEPER. One whois in actual 
possession of and who occupies a house, as 
distinguished from a “boarder,” “lodger,” or 
“guest.” 


HOVEL. A place used by husbandmen 
to set their plows, carts, and other farming 
utensils out of the rain and sun. A shed; a 
cottage; a mean house. 


HOWE. In old English law. A hill. 
Oo. Litt. 58. 


HOY. <A small coasting vessel, usually 
sloop-rigged, used in conveying passengers 
and gouds from place to place, or as a tender 
to larger vessels in port. Webster. 


HOYMAN. 
hoy. 


HUCUSQUE, 
erto. 2 Mod, 24. 


HUDE-GELD. InoldEnglishlaw. An 
acquittance for an assault upon a trespassing 
servant. Supposed to be a mistake or mis- 
print in Fleta for “hinegeld.” Fleta, lib. 1, 
c, 47, § 20. Also the price of one’s skin, or 
the money paid by a servant to save himself 
from a whipping. Du Cange. 


HUE AND CRY. In old English law. 
A loud outery with which felons (such as rob- 
bers, burglars, and murderers) were anciently 
pursued, and which all who heard it were 
bound to take up, and join in the pursuit, 
until the malefactor was taken, Iract. fols. 
115d, 124; 4 Bl. Comm. 293. 

A written proclamation issued on the 
escape of a felon from prison, requiring all 
officers and people to assist in retaking him. 
$8 How. State Tr. 386. 


The master or captain ofa 


In old pleading. Hith- 


583 


HUNDRED GEMOTE 


HUEBRAS. In Spanish law. A meas. 
ure of land equal to as much as a yoke of 
oxen can plow inoneday. 2 White, Recop. 
(38,) 49; 12 Pet, 448. 


HUISSERIUM. A ship used to trans- 
port horses. Also termed “u/fer.” 


HUISSIERS. InFrenchlaw. Marshals; 
ushers; process-Servers; sheriffs’ officers. 
Ministerial officers attached to the courts, to 
effect legal service of process required by law 
in actions, to issue executions, ete., and to 
inaintain order during the sitting of the 
courts. 


HULKA. In old records. <A hulk or 
sinall vessel, Cowell. 

HULLUS. In old records. A hill 2 
Mon. Angl. 292; Cowell. 

HUMAGIUM. A moist place. Mon. 
Angl. 

HUNDRED, Under the Saxon organiza- 


tion of England, each county or shire com: 
prised an indefinite number of hundreds, 
each hundred containing ten tithings, or 
groups of ten families of freeholders or frank- 
pledges. The hundred was governed by a 
high constable, and had its own court; but 
its most remarkable feature was the corporate 
responsibility of the whole for the crimes or 
defaults of the individual members. Thein- 
troduction of this plan of organization into 
England is commonly ascribed to Alfred, 
but the idea, as well of the collective liability 
as of the division, was probably known to 


| the ancient German peoples, as we find the 


same thing established in the Frankish king- 
dom under Clothaire, and in Denmark. See 
1 Bl. Comm. 115; 4 Bl. Comm. 411. 


HUNDRED COURT. In English law. 
A larger court-baron, being held for al) the in- 
habitants of a particular hundred, instead of 
amanor. The free suitors are the judges, 
and the steward the registrar, as in the case 
of a court-baron., Itis not a court of record, 
and resembles a court-baron in all respects 
except thatin point of territory it is of greater 
jurisdiction. ‘These courts have long since 
fallen into desuetude. 3 BI. Comm. 34, 35; 
3 Steph. Comm. 394, 395. 


HUNDRED GEMOTE. Among the 
Saxons, a meeting or court of the freehold- 
ers of a hundred, which assembled, original- 
ly, twelve times a year, and possessed civil 
and criminal jurisdiction and ecclesiastical 
powers. 1 Reeve, Eng. Law, 7. 


HUNDRED LAGH 


HUNDRED LAGH. 


984 


The law of the | 


HUSTINGS 


HURTO. In.Spanish law. Theft. 


hundred, or hundred court; liability to attend | White, New Recop. b. 2, tit. 20. 


the hundred court. Spelman. 


HUNDRED PENNY. In old English 
law. A tax collected from the hundred, by 
the sheriff or lord of the aac Spel. voce. 
“ Hundredus.” 


HUNDRED SECTA. The performance 
of suit and service at the hundred court. 


HUNDRED SETENA. In Saxon law. 
The dwellers or inhabitants of a hundred. 
Cowell; Blount. Spelman suggests the read- 
ing of scealena from Sax. “sceat,” a tax. 


HUNDRED-WEIGHT. A denomina- 
tion of weight containing, according to the 
English system, 112 pounds; but in this 
country, generally, it consists of 100 pounds 
avoirdupois, 


HUNDREDARIUS. In old English 
law. -A hundredary or hundredor, A name 
given to the chief officer of a hundred, as 
well as to the freeholders who composed it. 
Spel. voc. “Hundredus.” 


HUNDREDARY. The chief or presid- 
ing officer of a hundred. 


HUNDREDES HARIDOR, or HUN- 
DREDES MAN. The presiding oilicer in 
the hundred court. Anc. Inst. Eng. 


HUNDREDORS. In Englishlaw. The 
inhabitants or freeholders of a hundred, an- 
ciently the suitors or judges of the hundred 
court. Versors impaneled or fit to be im- 
paneled upon juries, dwelling within the 
hundred where the cause of action arose. 
Cromp. Jur, 217. It was formerly necessary 
to have some of these upon every panel of 
jurors. 3 Bl. Comm. 359, 360; 4 Steph. 
Comm. 370. 

The term “liundredor” was also used to 
signify the officer who had the jurisdiction of 
a hundred, and held the hundred court, and 
sometimes the bailiff of a hundred. Termes 
de Ja Ley; Cowell. 


HURDEREFERST. 
of a family. 


A domestic; one 


HURDLE. In English criminal law. 
A kind of sledge, on which convicted felons 
were drawn to the place of execution. 


HURST, HYRST, HERST, or HIRST, 
A woed or grove of trees. Co. Litt. 48. 


HURTARDUS, or HURTUS. 
or wether. 


A ram 


| house servant or domestic; 


HUSBAND. A married man; one who 
has a lawful wife living. The correlative of 
NVLTES? 


Etymologically, the word signified the “house 
bond;” the man who, according to Saxon ideas aud 
institutions, held around him the family, for whom 
he was in law responsible. 


HUSBAND AND WIFE. One of tlie 
great domestic relationships; being that of a 
man and woman lawfully joined in marriage, 
by which, at common law, the legal exist- 
ence of a wife is incorporated with that of 
her husband. 


HUSBAND LAND. In old Scotch luw. 
A quantity of land containing commonly six 
acres. Skene. 


HUSBAND OF A SHIP. 
HvsBanp. 


HUSBANDMAN. <A farmer; a cultie 
vator or tiller of the ground. The word 
“farmer” is colloquially used as synonymous 
with “husbandman,” but originally meant a 
tenant who cultivates leased ground. 


See SnHrp’s 


HUSBANDRIA. In old English law. 
Husbandry. Dyer, (Fr. Ed.) 350. 


HUSBANDRY. Agriculture; cultivation 
of the soil for food; farming, in the sense 
of operating land to raise provisions, 


HUSBREC. In Saxon law. The crime 
of housebreaking or burglary. Crabb, Eng. 
Law, 59, 303, 


HUSCARLE. In old English law. A 
a man of the 
household. Spelman. 

A king’s vassal, thane, or baron; an earl’s 
tain or vassal. A term of frequent occur. 


rence in Domesday Book. 


HUSFASTNE. He whoholds house and 
Jand. Jract, 1 3, t. 2, ¢. 10. 


HUSGABLUM. Inoldrecords. House 
rent; or a tax or tribute jaid upon a house, 
Cowell; Blount. 


HUSH-MONEY. A colloquial expres- 
sion to designate a bribe to hinder informa- 
tion; pay to secure silence, 


HUSTINGS. Council; court; tribunal. 
Apparently so called from being held within 
a building, at a time when other courts were 
l:eld in the open air. It was a lecal court. 
The county court in the city of London bore 
this name. There were hustings at York, 


| 


HUSTINGS 


y % 

: 5 
Lincoln, and in other places 
to the London hustings. Also the 
d place from which candidates for seats 
in parliament address the constituency, on 
_ the occasion of their nomination. Wharton. 
In Virginia, some of the local courts are 
called “hustings,” as in the city of Rich- 

mond. 6 Grat. 696. 


HUTESIUM ET CLAMOR. Hue and 
ery. See Hur anp Cryr. 


HAUTILAN. Taxes. Mon. Angi. i. 586. 


HWATA, HWATUNG. Inold English 
law. Augury; divination. 


HYBERNAGIUM. Inold English law. 
The season for sowing winter grain, between 
Michaelmas and Christmas. The land on 
which such grain was sown. The grain it- 
self; winter grain or winter corn. Cowell. 


HYBRID. A mongrel; an animal formed 
of the union of different species, or different 


- genera; also (metaphorically) a human be- 
ing born of the union of persons of different 
Taces. 


] HYD. Inold English law. Hide; skin. 
A measure of land, containing, according to 

some, a hundred acres, which quantity is 
also assigned to it in the Dialogus de Scacca- 
rio, It seems, however, that the hide varied 
in different parts of the kingdom. 


HYDAGE. See Hipage. 


HYDROMETER., An instrument for 

measuring the density of fluids. Being im- 

mersed in fluids, as in water, brine, beer, 

brandy, etc., it determines the proportion of 

their density, or their specific gravity, and 

thence their quality. See 3 Story, U. S. 
Laws, 1976. 


HYEMS, HIEMS. Lat. In thecivillaw. 
Winter. Dig. 48, 20, 4, 34. Written, in 
some of the old booka, “yems.” Fleta, lib. 
2,¢. 73, §§ 16, 18. 


HYPOBOLUM. Inthecivillaw. The 
name of the bequest or legacy given by the 
husband to his wife, at his death, above her 
dowry. 


HYPOTHEC. In Scotland, the term 
“hypothec” is used to signify the landlord’s 
right which, independently of any stipula- 
tion, he has over the crop and stocking of his 
tenant. It gives a security to the landlord 
over the cropofeach year for the rent of that 
year, and over the cattle and stocking on the 
farm for the current year’s rent, which last 
eontinues for three months after the iast con- 


585 


HYPOTHECATION 


ventional term for the payment of the rent. 
Bell. 


HYPOTHECA. “Hypotheca” wasa 
term of the Roman law, and denoted a pledge 
or mortgage. As distinguished from the 
term “pignus,” in the same law, it denoted 
a mortgage, whether of lands or of goods, in 
which the subject in pledge remained in the 
possession of the mortgagor or debtor; 
whereas in the pignus the mortgagee or 
ereditor was in the possession. Such an hy- 
potheea might be either express or implied; 
express, where the parties upon the occasion 
of a loan entered into express agreement to 
that effect; or implied, as, 2g.,in the case 
of the stock and utensils of a farmer, which 
were subject to the Jandlord’s right as a cred- 
itor for rent; whence the Scotch law of hy- 
pothee. 

The word has suggested the term “hypoth- 
ecate,” as used in the mercantile and mar- 
itime law of England. Thus, under the 
factor’s act, goods are frequently said to be 
“ly pothecated ;” and a captain is said to have 
a right to hypotliecate his vessel for necessa- 
ry repairs, Brown. See Mackeld. Rom 
Law, §§ 334-359. 


HYPOTHECARIA ACTIO. In the 
civillaw. An hypothecary action; an action 
for the enforcement of an hypotheca, or right 
of mortgage; or to obtain the surrender of 
the thing mortgaged. Inst. 4, 6,7; Mackeld. 
Rom. Law, § 356. Adopted in the Civil 
Code of Louisiana, under the name of “?’ae- 
tion hypothicarie,” (translated, “action of 
mortgage.”) Article 3361. 


HYPOTHECARII CREDITORES. In 
the civillaw. Hypothecary creditors; those 
who loaned money on the security ot an Ay- 
potheca, {g.0.) Calvin. 


HYPOTHECARY ACTION. The 
name of an action allowed under the civil 
law for the enforcement of the claims of a 
creditor by the contract of hypotheca. 


HYPOTHECATE. To pledge a thing 
without delivering the possession of it to the 
pledgee. “The master, when abroad, and in 
the absence of the owner, may hypothecats 
the ship, treight, and cargo, to raise money 
requisite for the completion of the voyage.” 
3 Kent, Comm. 171. 


HYPOTHECATION. A term borrowed 
from the civil Jaw. In so far as it is nat- 
uralized in English and American law, it 
means a contract of mortgage or pledge in 
which the subject-matter is not delivered 


HYPOTHECATION 


into the possession of the pledgee or pawnee; 
or, conversely, a conventional right existing 
in one person over specific property of an- 
other, whieh consists in the power to cause 
asale of the same, though it be not in his 
possession, in order that a specific elaim of 
the creditor may be satisfied out of the pro- 
eceds. 5 

The term is frequently used in our text- 
books and reports, particularly upon the law 
of bottomry and maritime liens; thus a ves- 
sel is said to be hypothecated for the demand 
of one who has advanced money for supplies. 

In the common law, there are but few, if any, 
cases of hypothecation, in the strict sense of the 
civil law; that is, a pledge without possession by 
the pledgee. The nearest approaches, perhaps, 
are cases of bottomry bonds and claims of material- 
men, and of seamen for wages; but these are liens 
and privileges, ratherthan hypothecations. Story, 
Baiim. § 288, 

“Hypothecation” is a term of the civil law, and 
is that kind of pledge in which the possession of 
the thing pledged remains with the debtor, (the 
obligation resting in mere contract without deliv- 
ery;) and in this respect distinguished from “ pig- 
nus,” in which possession is delivered to the cred- 
itor orpawnee. 24 Ark. 27, See 2 Bell, Comm. 25. 


HYPOTHECATION BOND. A bond 
given in the contract of bottomry or respon- 
dentia, 


HYPOTHEQUE. In French law. Hy- 
pothecation; a mortgage on real property; 
the right vested in a creditor by the assign- 
ment to him of real estate as security for the 
payment of his debt, whether or not it be 
accompanied by possession. See Civil Code 
La. art. 33860. 

It corresponds to the mortgage of real property 
in English law, und is a real charge, following the 
property into whosesoever hands itcomes. Itmay 
be tégale, as in the case of the charge which the 
state has over the lands of its accountants, or 
which a married woman has over thoseof her hus- 
band; judieciaire, when itis tho result of a judg- 


586 


eee Se re ———— a 


HYTHE 


ment of a court of justice; and conventionelle, 
when it is the result of an agreement of the par 
ties. Brown. 


HYPOTHESIS. A supposition, assump- 
tion, or theory; a theory set up by the prosecu- 
tion, ona criminal trial, or by the defense, as 
an explanation of the facts in evidence, and a 
ground for inferring guilt or innocence, as 
the case may be, or as indicating a probable 
or possible motive for the crime. 


HYPOTHETICAL CASH. <A combina- 
tion of assumed or proved facts and circum- 
stances, stated in such form as to constitute 
acoherent and specific situation or state of 
facts, upon which the opinion of an expert 
is asked, by way of evidence on a trial. 


AYPOTHETICAL YEARLY TEN- 
ANCY. The basis, in England, of rating 
lands and hereditaments to the poor-rate, and 
to other rates and taxes that are expressed to 
be leviable or assessable in like manner as 
the poor-rate. 


HYRNES. In old English law. 
ish. 


HYSTEROPOTMOI. Those who, hay- 
ing been thought dead, had, after a long ab- 
sence in foreign countries, returned safely 
heme; or those who, having been thought 
dead in battle, had afterwards unexpectedly 
escaped from their enemies and returned 
home. ‘These, among the Romans, were not 
permitted to enter their own houses at the 
door, but were received at a passage opened 
in the roof. Ene. Lond. 


HYSTEROTOMY. TheCwesarian opera- 
tion. 


HYTHE. In English law. A port, 
wharf, or small haven to embark or iand 
merchandise at. Cowell; Blount. 


A par- 


I. Theinitial letter of the word “ Instt- 
¢uta,” used by some civilians in citing the 
Institutes of Justinian. Tayl. Civil Law, 
24, 


I—CTUS. An abbreviation for “juris- 
consulius,” one learned in the law; a juris- 
consult. 


I. F. An abbreviation for “id est,” that 
is; that is to say. 


I OU. A memorandum of debt, con- 
sisting of these letters, (“1 owe you,”) a sum 
of money, and the debtor’s signature, is 
termed an “I O U.” 


IBERNAGIUM. The season for sow- 
ing winter corn. 


Ibi semper debet fieri triatio ubi jura- 
tores meliorem possunt habere notitiam. 
7 Coke, 1b. <A trial should always be had 
where the jurors can be the best informed. 


IBIDEM. Lat. 
the same book; on the same page, ete. 
breviated to “ibid.” or “id.” 


ICHNI. The ancient name for the peo- 
ple of Suffolk, Norfolk, Cambridgeshire, and 
Huntingdonshire, in England. 


ICONA, An image, figure, or represen- 
tation of athing. Du Cange. 


ICTUS. In old English law. A stroke 
or blow from a club or stone; a bruise, con- 
tusion, or swelling produced by a blow from 
a club or stone, as distinguished from 
“plaga,” (a wound.) Fleta, lib. 1, c. 41, 
§ 3. 

ICTUS ORBIS. In medical jurispru- 
dence, A maim, a bruise, or swelling; any 
burt without cutting the skin. 

When the skin is cut, the injury is called 
a “wound.” SBract. lib. 2, tr. 2, ec. 5, 24. 


In the same place; in 
Ab- 


Id certum est quod certum reddi po- 
test. That is certain which can be made 
certain. 2 B). Comm. 143; 1 Bl. Comm. 78; 
4 Kent, Comm. 462; Broom, Max. 624. 


Id certum est quod certum reddi po- 
test, sed id magis certum est quod de 
semetipso est certum. That is certain 
which can be made certain, but that is more 
certain which is certain of itself. 9 Coke, 
Ala. 


587 


ee 


IDEM Est NIOIL DICERE, ETC. 


L, 


ID EST. Tat. 
breviated “i. e.” 


That is. Commonly ab- 


Id perfectum est quod ex omnibus 
suis partibus constat. That is perfect 
which consists of all its parts. 9 Coke, 9. 


Id possumus quod de jure possumus. 
Lane, 116. We may do only that which by 
law we are allowed to do. 


Id quod est magis remotum, non tra- 
hit ad se quod est magis junctum, sed 
© contrario in omni casu. That which is 
more remote does not draw to itself that 
which is nearer, but the contrary in every 
case. Co. Litt. 164. 


Id quod nostrum est sine facto nos- 
tro ad alium transferri non potest. That 
which is ours cannot be transferred to an- 
other without our act. Dig. 50, 17, 11. 


Id solum nostrum quod debitis de- 
ductis nostrum est. That only is ours 
which remains to us after deduction of debts. 
Tray. Lat. Max. 227. 


IDEM. Lat. Thesame. According to 
Lord Coke, “idem” has two significations, 
se,, idem syllabis sew verbis, (the same in 
syllables or words, ) and idem re et sensu, (the 
same in substance and in sense.) 10 Coke, 
1242, 


In old practice. The said, or aforesaid; 
said, aforesaid. Distinguished from “pre- 
dictus” in old entries, though having the 
same general signification. ‘Townsh. Pl, 15, 
16. 


Idem agens et patiens esse non po- 
test. Jenk. Cent.40. The same person can- 
not be both agent and patient; 7. ¢., the doer 
and person to whom the thing is done. 


Idem est facere, et non prohibere cum 
possis; et qui non prohibit, cum pro- 
hibere possit, in culp& est, (aut jubet.) 
3 Inst. 158. To commit, and not to prohibit 
when in your power, is the same thing; and 
he who does not prohibit when he can pro- 
hibit is in fault, or does the same as ordering 
it to be done. 


Idem est nihil dicere, ot insufiicienter 
dicere. It is the same thing to say noth- 
ing, and tosay athing insufficiently. 2 Inst. 
178. To say a thing in an insufficient man- 


IDEM EST NON ESSE, ETC. 


ner is the same as not to say itatall. Ap- 
plied to the plea of a prisoner. Id. 


idem est non esse, et non apparere. 
{tis the same thing not to be as not to ap- 
pear. Jenk. Cent, 207. Not to appear is 
the same thing as not to be. Broom, Max. 
165. 7 


Idem est nen probari et non esse; 
non deficit jus, sed probatio. What is 


not proved and what does not exist are the | 


same; it is not a defect of the law, but of 
proot. 


Idem est scire aut scire debers aut 
potuisse. To be bound to know or to beabla 
to know is the same as to know. 


IDEM PER IDEM. The same for the 
same. An illustration of a kind that really 
adds no additional element to the considera- 
tion of the question. 


Idem semper antecedenti proximo 
refertur, Co, Litt, 685. “The same” is 
always referred to its next antecedent. 


IDEM SONANS. Sounding the same or 
alike; having the same sound. A term ap- 
plied to names which are substantially the 
same, though slightly varied in the spelling, 
us “Lawrence” and “Lawrenee,” and the 
like. 1Cromp. & M. 806; 3 Chit. Gen. Pr. 
Ae 


IDENTIFICATION. Proof of identity; 
the proving that a person, subject, or article 
before the court is the very same that he or 
it is alleged, charged, or reputed to be; as 
where a witness recognizes the prisoner ab 
the bar as the same person whom he saw 
committing the crime; or where hand writ- 
ing, stolen goods, couuterfeib coin, ete., are 
recognized as the same which once passed 
under the observation of the person identi- 
fying them. 


Identitas vera colligitur ex multitudinea 
signorum. ‘True identity is collected from 
a multitude of signs. Bac. Max. 


IDENTITATE NOMINIS. In English 
law. An ancient writ (now obsolete) which 
lay for one taken and arrested in any person- 
al aclion, and committed to prison, by mis- 
take for another man of the same name. 
Fitzh. Nat. Brev. 267, 


IDENTITY. In the law of evidence. 
Sameness; the fact that a subject, person, or 
thing before a court is the same as it is rep- 
resented, claimed, or charged to be. See 
Burrill, Cire. Ey. 382, 453, 631, 644. 


588 IDIOTA INQUIRENDO, WRIT DE 


IDEO. Lat. Calvin. 


IDEO CONSIDERATUM EST. There- 
fore it is considered. These were the worda 
used at the beginning of the entry of judg- 
ment in an action, when the forms were in 
Latin. They are also used as a name for 
that portion of the reeord. 


IDES. A division of time among the 
Romans. In March, May, July, and Octo- 
ber, the Ides were on the 15th of the month; 
in the remaining months, on the 13th. This 
method of reckoning is still retained in the 
chancery of Kome, aud in the calendar of the 
breviary. Wharton. 


IDIOCHIRA. Greco-Lat. In the civil 
law. An instrument privately executed, as 
distinguished from suchas were executed be- 
fore a public otficer. Cod. 8, 18, 11; Calvin. 


IDIOCY. In medical jurisprudence. 
That condition of mind in which the reflect- 
ive, and all or a part of the affective, powers 
are either ontirely wanting, or are manifest- 
ed to the slightest possible extent. Hay, 
Insan. § 58; Whart. & 8. Med. Jur. § 222. 

There is a distinction between “idioey” 
and “dementia,” the first being due to tha 
fact that there are original structural defects 
in the brain; the second resulting from the 
supervention of organie changes in a brain 
originally of normal power. Ham. Nervous 
System, 338. 

Idiecy is that condition in which the human 
creature has never had, from birth, any, the least, 
glimmering of reason; and is utterly destitute of 
all those intellectual faculties by which man, in 
general, is so eminently and peculiarly distin- 
guished. It is not the condition of a deranged 
mind, but that of a total absence of all mind. 
Henee this state of fatuity cau rarely ever be mis- 
taken by any, the most superticial, observer. The 
medical profession seem to regard it as a natural 
defect, not as a disease in itself, or as the result 
of any disorder. In law, it is also considered as a 
defect, and as a permanent and hopeless ineapaci- 
ty. 1 Bland. Ch. 356. 


Therefore. 


IDIOT. A person who has been without 
understanding from his nativity, and whom 
the law, therefore, presumes never likely to 
attain any. Shelf. Lun. 2. See Iniocy, 


IDIOTA. In the civil law. An un- 
learned, illiterate, or simple person. Calvin. 
A private man; one not in office. 

In common law. An idiot or fool. 


IDIOTA INQUIRENDO, WRIT DE. 
This is the name of an old writ which directs 
the sheriff to inquire whether a man be an 
idiot or not, The inquisition is to be made 
by a jury of twelve men. Fitzh. Nat. Brey. 


‘the man were found an idiot, 
his lands and the custody of his 
n might be granted by the king to any 
eet who had interest enough to obtain 
them, 1 BI. Comm. 303, 


IDONEUM SE FACERE; IDO- 
‘NEARE SE. To purge one’s self by oath 
of a crime of which one is accused. 


IDONHUS. Lat. In the civil and com- 
monlaw. Suflicient; competent; fit or prop- 
er; responsible; unimpeachable. Idoneus 
homo, a responsible or solvent person; a good 
and lawful man. Sufficient; adequate; sat- 
lafactory. Idenea cautie, suflicient security. 


IDONIETAS. InoldEnglishlaw. Abil- 
Ity or Btness, (of a parson.) Artic. Cleri, 
c. 13, 


IF. In deeds and wills, this word, as a 
rule, implies a condition precedent, unless It 
be controlled by other words. 2 Crabb, Real 
Prop. p. $09, § 2152; 77 N. C. 401. 


IFUNGIA. The finest white bread, for- 
merly called “cocked bread.” Blount. 


IGLISE. L. Fr. Acchurch. Kelham. 


Another form of “eglise.” 


IGNIS JUDICIUM. The old judicial 
trial by fre. Blount, 


IGNITEGIUM. 
‘The curfew, or evening bell. 
CURFEW: 


IGNOMINY. Public disgrace; infamy; 
reproach; dishonor. Ignominy is the oppo- 
nile of esteem. Wolff, § 145. See 38 Iowa, 
220. 


IGNORAMUS. Lat. “Weare ignorant;” 
“We ignore it.” Formerly the grand jury 
used to write this word on bills of indictment 
when, after having heard the evidence, they 
thought the accusation against the prisoner 
was groundless, intimating that, though the 
facts might possibly be true, the truth did 
not appear to them; but now they usually 
write in English the words “ Not a true bill,” 
or “Not found,” if that is their verdict; but 
they are still said toignore thebill. Brown. 


In old English law. 
Cowell. See 


IGNORANCE. The want or absence of 
knowledge. 

Ignorance of laze is want of knowledge or 
acquaintance With the laws of the land in so 
far as they apply to the act, relation, duty, or 
watter under consideration. Ignorance of 


fact is want of knowledge of some fact or 


EUM SE FACERE 589 


IGNORANTIA FACTI EXCUSAT 


facts constituting or relating to the subject- 
matter in hand. 


Ignorance is not a state of the mind in the sense 
in which sanity and insanity are. When the mind 
is ignorant of a fact, its condition still remains 
sound; the power of thinking, of judging, of will- 
ing, is justas complete before communication of 
the fact as after; the essence or texture, so to 
speak, of the mind, is not, as in the case of insan- 
ity, affected or impaired. Ignorance of a particu- 
lar fact consists in this: that the mind,.although 
sound and capable of healthy action, has never 
acted upon the fact in question, because the sub- 
ject has never been brought to the notice of the 
perceptive faculties. 28 N. J. Law, 274. 

“Tgnorance” and “error” are not converte 
ible terms. The former is a lack of informa- 
tion or absence of knowledge; the latter, a 
misapprehension or confusion of information, 
ora mistaken supposition of the possession 
of knowledge. Error as to a fact may im- 
ply ignorance of the truth; but ignorance 
does not necessarily imply error. 

Essential ignorance is ignorance in relation to 
some essential circumstance so intimately con- 
nected with the matter in question, and which so 
influences the parties, that it induces them to act 
in the business, Poth. Vente, nn. 8, 4; 2 Kent, 
Comm, 367, 

Non-essential or accidental ignorance is that 
which has not of itself any necessary counection 
with the business in question, and which is not 
the true consideration for entering into the con- 
tract. 

involuntary ignorance is that which does not 
proceed from choice, and which cannot be over 
come by the use of any means of knowledge known 
to a person and within his power; as the igno- 
rance of alaw which has not yet been promulgated, 

Voluntary ignorance exists when a party might, 
by taking reasonable pains, have acquired the 
necessary knowledge. For example, every man 
might acquire a knowledge of the laws which have 
been promulgated. Doct. & Stud. 1, 46; Plowd. 
343. 


IGNORANTIA. Ignorance; want of 
knowledge. Distinguished from mistake, 
(error,) or wrong conception. Mackeld, 
Rom. Law, § 178; Dig. 22, 6. Divided 
by Lord Coke into ignorantia facti (igno- 
rance of fact} and tgnorantia juris, (igs 
norance of Jaw.) And the former, he adds, 
is twofold,—tlectionis et lingua, (ignorance 
of reading and ignorance of language.) 2 
Coke, 3b. 


Ignorantia eorum ques quis scire ten- 
etur non excusat, Ignorance of those 
things which one is bound to know excuses 
not. Hale, P. C. 42; Broom, Max. 267. 


Ignorantia facti excusat. Ignorance 
of fact excuses or isa ground of relief. 2 
Coke, 3b. Aets dene and contracts made 
under mistake or ignorance of a material fact 


IGNORANTIA FACTIL EXCUSAT 


are voidable and relievabiein law and equity. 
2 Kent, Comm. 491, and notes. 


Tgnorantia facti excusat, ignorantia ju- 
ris non excusat. Isguorance of the fact ex- 
cuses; ignorance of the law excuses not. 
livery man must be taken to be cognizant of 
the law; otherwise there is no saying to what 
extent the excuse of ignorance may not be 
carried. 1 Coke, 177; Broom, Max. 253, 


Ignorantia juris quod quisque tenetur 
scire, neminem excusat. Ignorance of 
the [or a] law, which every one is bound to 
know, excuses no man. A mistake in point 
of law is, in criminal cases, no sort of defense, 
4 Bl. Comm. 27; 4 Steph. Comm. 81; Broom, 
Max. 258; 7 Car. & P. 456. And, in civil 
cases, ignorance of the law, with a full knowl- 
edge of the facts, furnishes no ground, either 
in law or equily, to rescind agreements, or 
reclaim money paid, or set aside solemn acts 
of the parties. 2 Kent, Comm. 491, and 
note, 


Ignorantia juris sui non prejudicat 
juri. Ignorance of one’s right does not prej- 
udice the right. Lolft, 552. 


Ignorantia legis neminem excusat. 
Ignorance of law excuses no one. 4 Bouv, 
Inst. no. 3828; 1 Story, Eq. Jur. § 111; 7 
Watts, 374. 


IGNORATIO ELENCHI, Lat. In 
logic. An overlooking of the adversary'’s 
counter-position in an argument. 


Ignoratis terminis artis, ignoratur et 
ars. Where the terms of an art are un- 
known, the art itself is unknown also. Co. 
Litt. 2a. 


IGNORE. I. To be ignorant of, or un- 
acquainted with. 

2. To disregard willfully; to refuse to rec- 
ognize; to decline to take notice of. 

3. To reject a8 groundless, false, or un- 
supported by evidence; as when & grand jury 
ignores a bill of indictment. 


Tenoscitur 61 qui sanguinem suum 
qualiter redemptum voluit. The law 
holds him excused from obligation who chose 
te redeem his blood (or life) upon any terms, 
Whatever a man way do under the fear of 
losing his life or limbs will net be held bind- 
ing upon him in law. 1 Bl, Comm. 181. 


IKENILD STREET. One of the four 
great Roman reads in Britain; supposed to 
be so called from the feend. 


ILET. A little island, 


590 


ILLEVIABLE 


ILL. Inold pleading. Bad; defeetivein 
law; null; naugit; the opposite of good or 
yalid. 


ILL FAME. Evilrepute; notorious bad 
character. Houses of prostitution, gaming 
houses, and other such disorderly places are 
called “houses of iil fame,” and a person whe 
frequents them is a person of ill fame, 


ILLATA ET INVECTA. Things 
brought inte the house for usa by the tenant 
were so called, and were liable to the jus 
hypothece of Roman law, just as they are 
to the landlord’s right of distress at common 
law. 


ILLEGAL. Not authorized by law; 
iNieit; unlawful; contrary to law. 

Sometimes this term means merely that which 
lacks authority of or suppert from law; but more 
frequently itimports a yiolation. Ktymologically, 
the word seems ta convey the negative meaning 
only, But in ordinary use it has a severer, stroug- 
er signification; the ides of censure or condemna- 
tiou for breaking law is usually presented. But 
the law implied in illegal is not necessarily an ex- 
press statute. Things are called “illegal” for 
violation of common-law principles. And the term 
doas not imply that the act spoken of is immoral 
or wicked; it implies only a breach of the law. 
1 Abb. Pr. (N. 8.) 432; 45 N. HL 196; Id. S11; 8 
Sneed, 64. 

ILLEGAL CONDITIONS, All those 
that are impossible, or contrary to law, im- 
moral, or repugnant to the nature of the 
transaction. 


ILLEGAL CONTRACT. Anagreement 
fo do any act forbidden by the law, or to omit 
to do any act enjoined by the law. 


ILLEGAL TRADE. Such traffic or 
commerce as is carried on in violation of the 
municipal law, or contrary to the law of na- 
tions. See ILLicir TRrapeE, 


ILLEGITIMACY. The condition before 
the law, or the social status, of a bastard; 
the state or condition of one whose parents 
were not intermarried at the time of his 
birth, 


ILLEGITIMATE. That which is con- 
trary to law; it ts wsually applied to baslards, 
or children born out of lawful wedlock. 

The Louisiana Code divided illegitimate children 
intotwoelasses: (1) Those born from two persoug 
who, at the moment when such children were con: 
ceived, could have lawfully intermarried; and (2) 
those who are born from persons to whose mar 
riage there existed at the time some legal impedi- 
ment. Both classes, however, could be acknowk 
edged and take by devise. 12 Rob. (La.) 56. 


ILLEVIABLE. Not leviable; that can- 
not or ought not to be levied. Cowell 


ILLICENCIATUS 


 ILLICENCIATUS. In old English law, 
Without license. Fleta, lib. 3, c. 5, § 12. 


ILLICIT. Not permitted or allowed; 
prohibited; unlawful; as an dédicit trade; 
tilicit intercourse. 


ILLICIT TRADE. Policies of marine 
Insurance usually contain a covenant of 
warranty against “illicit trade,” meaning 
thereby trade which is forbidden, or declared 
unlawful, by the laws of the country where 
the cargo is to be delivered, 

“Té ig not the same with ‘contraband 
trade,’ although the words are sometimes 
used as synonymous. Illicit or prohibited 
trade is one which cannot be carried on with- 
out a distinct violation of some positive law 
of the country where the transaction is to 
take place.” 1 Pars. Mar. Ins. 614. 


ILLICITE. Unlawfully. This word has 
A technical meaning, and is requisite in an 
indictment where the act charged is unlaw- 
ful; a3 in the case of a riot. 2 Hawk. P. C. 
e. 25, § 96. 


ILLICITUM COLLEGIUM. An ille- 
gal corporation. 


ILLITERATE. Unlettered; ignorant, 
unlearned. Generally used of one who can- 
not read and write. 


ILLOCABLE. Incapable of being placed 
out or hired. 


ILLUD. Lat. That. 


Tilud, quod alias licitum non est, ne- 
cessitas facit licitum; et necessitas in- 
ducit privilegium quoad jura privata. 
Bac. Max. That which is otherwise not 
permitted, necessity permits; and necessity 

- makes « privilege as to private rights, 


Tilud, quod alteri unitur, extinguitur, 
neque amplius per se vacare licet. Godol. 
Eee. Law, 169. That which is united to an- 
other is extinguished, nor can it be any more 
independent. 


ILLUSION. In medical jurisprudence. 
An imige or impression in the mind, excited 
by some external object addressing itself to 
the senses, but which, instead of correspend- 
ing with the reality, is perverted, distoried, 
or wholly mistaken, 


ILLUSORY. Deceiving by false appear- 
ances; nominal, as distinguished from sub- 
stantial. 

ILLUSORY APPOINTMENT. For- 
merly the appointment of a merely nominal 


591 


| 
| 


IMBROCUS 


share of the property to one of the objects of 
a power, in order to escape the rule that an 
exclusive appvintment could not be made im- 
less it was authorized by the instrament cre- 
ating the power, was considered illusory and 
void inequity. But this rule has been abol- 
ished in England. (1 Wm 1V.c. 46; 37 & 
83 Vict. c. 37.) Sweet. 


ILLUSORY APPOINTMENT ACT. 
The statute 1 Wm. [V.c¢. 46. This statute 
enacts thab no appointment made after its 
passing, (July 16, 1830,) in exercise of a pow- 
erto appoint property, real or personal, among 
several objects, shall be invalid, or impeached 
in equity, on the ground that an unsulstan- 
tial, illusory, or nominal share only was 
thereby appointed, or left unappointed, to de- 
volye upon any one or more of the objects of 
such power; but that the appointment shall 
be valid in equity, as at law. See, ico, 37 & 
38 Vict. ¢. 37. Wharton. 


ILLUSTRIOUS. The prefix to the title 
of a prince of the blood in England. 


IMAGINE. In English law. In cases 
of treason the law makes it a crime to imag- 
ine the death of the king. But, in order to 
complete the crime, this act of the mind must 
be demonstrated by some overt act. The 
terms “imagining” and “compassing” are 
inthis connection synonymous. 431. Comm, 
fher 


IMAN, IMAM, orIMAUM. A Moham- 
medan prince having supreme spiritual as 
well as temporal power; a regular priest of 
the mosque. 


IMBARGO. Anold form of “embargo,” 
(q.0.) St. 18 Car. IL. « 5. 


IMBASING OF MONEY. The act of 
mixing the species with an alloy below the 
standard of sterling. 1 Hale, P. C. 102. 


IMBECILITY. Weakness, or feeble- 
ness of intellect, either congenital, or result- 
ing from an obstacle to the development of 
the faculties, supervening in infancy. See 
Whart. & 5. Med. Jur. §§ 229-238. 


IMBEZZLE. See EMBEZZLE. 


IMBLADARE. 
plant or sow grain. 


In old Mnglishlaw. To 
Bract. fol. 1766. 


IMBRACERY. See EMBRACERY. 


IMBROCUS. A brook, gutter, er water- M 


passage. Cowell. : 


IMMATERIAL 


IMMATERIAL. Not material, essen- 
tial, or necessary; not important or pertinent; 
not decisive. 


IMMATERIAL AVERMENT. An 
averment alleging with needless particular- 
ity or unnecessary circumstances what is 
material and necessary, and which might 
properly have been stated more generally, and 
without such circumstances and particulars; 
or, in other words, a statement of un- 
necessary particulars in connection with and 
as descriptive of what is material. Gouid, 
PL. e 3, § 188; 3 Ala. 2387, 245. 


IMMATERIAL ISSUE. In pleading. 
An issue taken on an immaterial point; that 
is, # point not proper ty decide the action. 
Steph. Pl. 99, 180; 2 Tidd, Pr. 921. 


IMMEDIATE. 1. Present; at once; 
without delay; not deferred by any interval 
of time. In this sense, the word, without 
any very precise signification, denotes that 
action is or must be taken either instantly or 
without any considerable loss of time, 

Immediately does not, in legal proceedings, nec- 
essarily import the exclusion of any interval of 
time. Itis a word of no very definite significa- 
tion, and is much in subjection to its grammutical 
connections. 31 N. J. Law, 313. 

2, Not separated in respect to place; not 
separated by the intervention of any inter- 
mediate object, cause, relation, or right. 
Thus we speak of an action as prosecuted for 
the “immediate benefit” of A., of a devise as 
made to the “immediate issue” of B., ete. 


IMMEDIATE DESCENT. “A descent 
may be said to be mediate or immediate in 
regard to the mediate or immediate descent 
of the estate or right: orit may be suid to be 
mediate or immediate in regard to the me- 
diateness or immediateness of the pedigree or 
degrees of consanguinity.” Story, J.,6 Pet. 
112, 


IMMEDIATELY. “It is impossible to 
lay down any hard and fast rule as to what 
is the meaning of the word ‘immediately’ in 
all cases. The words ‘forthwith’ and ‘im- 
mediately’ have the same meaning. They 
are atronger than the expression ‘within a 
reasonable time,’ and imply prompt, vigorous 
action, without any delay, and whether there 
has been such ,action is a question of fact, 
having regard to the circumstances of the 
particular case.” -Cockburn, ©. J., 4 Q. B. 
Div. 471. 


IMMEMORIAL. 
ory; Lime out of mind. 


Beyond human mem- 


592 


IMMORALITY 


IMMEMORIAL POSSESSION. In 
Louisiana. Possession of which no man liv. 
ing has seen the beginning, and the existence 
of which he has learned from his elders, 
Civil Code La. art. 762; 2 Mart. (La.) 214, 


IMMEMORIAL USAGE. A practice 
which has existed time out of mind; cus- 
tom; prescription. 


IMMEUBLES. These are, in French 
law, the immovables of English law. Things 
are tmmeubles from any one of three causes; 
(1) Froin their own nature, e. g., lands and 
houses; (2) from their destination, e. g., an- 
imals and instruments of agriculture when 
supplied by the landlord; or (3) by the ob- 
ject to which they are annexed, e. g., ease 
ments. Brown. 


IMMIGRATION. The coming into a 
country of foreigners for purposes of perma- 
nent residence. The correlative term “em- 
igration” denotes the act of such persons in 
leaving their former country. 


IMMISCERE. Lat. In the civil law. 
To mix or mingle with; to meddle with; to 
join with. Calvin. 


IMMITTERE. In the civil law. To 
put or let into, asa beam intoa wall. ‘Calvin; 
Dig. 50, 17, 242, 1. 

‘In old English law. To put cattle on a 
cominon, Fleta, lib. 4, ¢. 20, § 7. 


Immobilia situm sequuntur, Immova- 
ble things follow their site or position; are 
governed by the law of the place where they 
are fixed, 2 Kent, Comm. 67, 


IMMOBILIS. Immovable. Immobitia, 
or ves immobiies, immovable things, such as 
lands and buildings. Mackeld. Rom. Law, ° 
§ 160. 


IMMORAL. Contrary to good morals; 
ineonsistent with the rules and principles 
of morality which regard men as living in 
a community, and which are necessary for 
the public weifare, order, and decency. 


IMMORAL CONSIDERATION. One 
contrary to good morals, and therefore in- 
valid. Contracts based upon an immoral 
consideration are generally void. 


IMMORAL CONTRACTS. Contracts 
founded upon considerations contra bunos 
mores are void. 


IMMORALITY. That which is contsa 
bonos mores. See IMMORAL. 


IMMOVABLES 


IMMOVABLES. Inthecivillaw. Prop- 
ty which, from its nature, destination, or 
the object to which it is applied, cannot move 
jtself, or be removed, 

Immovable things are, in general, such as 
cannot either move themselves or be removed 
from ene place to another. But this defini- 
tion, strictly speaking, is applicable only to 
such things as are immovable by their own 
nature, and not to such as are so only by the 
disposition of the Jaw. Civil Code La, art. 
462. 


IMMUNITY. An exemption from serv- 
ing in an office, or performing duties which 
the law generally requires other citizens to 
perform. 


: IMPAIR. To weaken, diminish, or re- 
} lax, or otherwise affect in an injurious man- 
ner, 


I “IMPAIRING THE OBLIGATION 
OF CONTRACTS.” For the meaning of 
I this phrase in the constitution of the United 
States, see 2 Story, Const. §§ 1374-1399; 
1 Kent, Comm. 413-422; Pom. Const. Law; 
ih Black, Const, Prohib. pt. 1. 


IMPANEL. In English practice. To 
impanel a jury signifies the entering by the 
| sheriff upon a piece of parchment, termed a 
“panel,” the names of the jurors who have 

been summoned to appear in court on a cer- 
tain day to form a jury of the country to hear 
| such matters a3 may be brought before them. 
| Brown. 
In American practice. Besides the 
meining above given, “impanel” signifies 
the act of the clerk of the court in making 
up # list of the jurors who have been select- 
ed for the trial of a particular cause. 


Impaneling has nothing to do with drawing, se- 
lecting, or swearing jurors, but means simply 
making the list of those who havo beea selected. 
7 How, Pr. 441. 


IMPARCARE. InoldEnglishlaw. To 
impound, leg. Orig. 92. 

‘To shut up, or confine in prison. Inducti 
sunt in careerem et imparcati, they were 
earried to prison and shut up. Bract. fol. 
124. 


IMPARGAMENTUM., 
impounding cattle. 


The right ef 


IMPARL. To have license to settle a liti- 
gation amicably; to oblaim dolay for adjust- 
ment. 


IMPARLANCE. In early practice, im- 
parlance meant time given to either of the 
AM. DICT. LAW—38 


593 


IMPEACHMENT OF WASTE 


parties to an action to answer the pleading of 
the other. It thus amounted to a continn- 
ance of the action to a further day. Liter- 
ally the term signified leave given to the par- 
ties to talk together; i. e., witha view to 
settling their differences amicably, But in 
modern practice it denotes atime given to 
the defendant to plead. 

A general imparianee is the entry of a general 
prayer and allowaxce of tims to plead till the next 
term, without reserving to the defendant tha ben- 
efit of any exception; so that after such an impar 
lance the defendant cannot object to the jurisdic 
tion of the court, or plead any matter in abatement. 
This kind of imparlance is always from one term 
to another. 

A general special imparlance contains a saving 
of ai] exceptions whatsoever, so that the defendant 
after this may plead not only in abatement, but he 
may also plead a plea which affects the jurisdic- 
tion of the court, as privilege. He cannot, how- 
ever, plead a tender, and that he was always ready 
to pay, because by craving time he admits that he 
is not ready, and so falsifies his plea. 

A special tmparlance reserves to the defendant 
all exceptions to the writ, bill, or count; and there- 
fore afterit the defendant may plead in abatement, 
though not to the jurisdiction of thecourt. 1Tidd, 
Pr. 462, 408. 


IMPARSONEE. L. Fr. In ecclesias- 
tical law. One who is inducted and in pus- 
session of a benefice. Parson imparsonee, 
(persona impersonata.) Cowell; Dyer, 40. 


IMPATRONIZATION. The actof put 
ting into full possession of a benefice. 


IMPEACH. To accuse; to charge a lia 
bility upon; to sue. 

To proceed against a public officer for crime 
or misfeasance, before a proper court, by the 
presentation of a written accusation called 
“articles of impeachment.” 

In the law of evidence. To callin ques- 
tion the veracity of a witness, by means of 
evidence adduced for that purpose. 


IMPEACHMENT. A criminal! proceed- 
ing against a public olficer, before a guust 
politica] court, instituted by a written aceusa- 
tion called “articles of impeachment;” for 
exainple, a written accusation by the house 
of representatives of the United States to the 
senate of the United States against an olficer. 

In England, a prosecution by the house of 
commons before the house of lords of a com- 
moner for treason, or other high crimes and 
misdemeanors, or of a peer for any crime. 

In evidence. An allegation, supported 
by proof, that a witness who has been ex- 
amined is unworthy of credit. 


IMPEACHMENT OF WASTE. Li- 
ability for waste committed; cr a demand or 


IMPEACHMENT OF WITNESS 


sult for compensation for waste conimitted 
upon lands or tenements by a tenant thereof 
who, having only a leasehold or particular 
estate, had no right to commit waste. See 2 
BL. Comm. 283. 


IMPEACHMENT OF WITNESS. 
Proof that a witne3s who has testified in a 
cause is unworthy of credit. 


IMPECHIARKE, To impeach, to accuse, 
or prosecute for felony or treason. 


IMPEDIENS. Inold practice. One who 
hinders; an impedient. The defendant or 
"eforciant in a fine was sometimes so called. 
Sowell; Blount. 


IMPEDIMENTO. In Spanish law. A 
prohibition to contract marriage, established 
‘y law between certain persons, 


IMPEDIMENTS. Disabilities, or hin- 
irances to the making of contracts, such ag 
coverture, infaney, want of reason, ete. 


In the civil law. Bars'to marriage. 

Absolute tmpediments are those which 
prevent the person subject to them from 
marrying at all, without either the nullity 
af marriage or its being punishable. Dérd- 
nant tmpediments are those which render a 
marriage void; as where one of the contract- 
ing parties is unable to marry by reason of 
a prior undissolved marriage, Prohibitive 
tmpediments are those which do not render 
the marriage null, but subject the parties 
toa punishment, Relative impediments are 
those which regard only certain persons with 
respect to each other; as between two par- 
ticular persons who are related within the 
prohibited degrees, Bowyer, Mod. Civil Law, 
44, 45. 


IMPEDITOR. In old English law. A 
disturber in the action of gquare tmpedit. 
St. Marlb. ¢. 12. 


IMPENSA. Lat. Inthe civillaw. Ex- 
penses; outlays. Mackeld, Rom. Law, § 168; 
Calyin. Divided into necessary, (necessa- 
riz,) useful, (wtiles,) and tasteful or orna- 
mental, (voluptuarie.) Dig. 50, 16, 79. 
Seo Id. 25, 1. 


IMPERATIVE. See Direcrory. 


IMPERATOR, Emperor. The title of 
the Roman emperors, and alsoof the kings of 
England before the Norman conquest. Cod. 
1, 14, 12; 1 Bl. Comm. 242. See Emprror. 


IMPERFECT OBLIGATIONS. Moral 
duties, such ag charity, gratitude, ete., which 
eannot be enforced by law. 


594 


IMPERTINENT 


IMPERFECT RIGHTS. See Riauts. 


IMPERFECT TRUST. 
trust, {which see;) and 
Trust, 


An executory 
see EXEOUTED 


Imperii maijestas est tutele salus. Co. 
Litt. 64. The majesty of the empire is the 
safety of its protection. 


IMPEHRITIA. Unskillfulness; want of 
skill. 


Imperitia culpe adnumeratur. Want 
of skill is reckoned a3 culpa; that is, 28 
blamable conduct or neglect. Dig. 50, 17, 
182. 


Imperitia est maxima mechanicorum 
peo. Unskillfulness is the greatest pun- 
ishment of mechanics; [that is, from its ef- 
fect in making them liable to those by whom 
they are employed.| 11 Coke, S4a. The 
word “vena” in some translations is er- 
roneously rendered “fault.” 


IMPERIUM. The right to command, 
which includes the right to employ the force 
of the state toenforee the laws. ‘This is one 
of the principal attributes of the power of 
the executive. 1 Toullier, no. 58. 


IMPERSONALITAS. Impersonality. 
A mode of expression where no reference is 
made to any person, such as the expression 
“ut dicitur,” (as is said.) Co. Litt. 3528, 


Impersonalitas non 
ligat. Co. Litt. 352. 
ther coneludes nor binds. 


IMPHRTINENCE. Irrelevancy; the 
fault of not properly pertaining to the issue 
or proceeding, ‘The introduction of any mat- 
ters into a bill, answer, or otber pleading or 
proceeding in a suit, which are not properly 
before the court for decision, at any particular 
stage of the suit, Story, Eq. Pl. § 266. 

in practice. A question propounded to 
a witness, or evidence offered or sought to 
be elicited, is called “impertinent” when it 
hus no logical bearing upon the issue, is not 
necessarily connected with it, or does not be- 
long to the matter in hand. On the distinc. 
tion between pertinency and ‘relevancy, we 
may quote the following remark of Dr. 
Wharton: “Relevancy is that which con- 
duces to the proof of a pertinent hypothesis; 
a pertinent hypothesis being one which, if 
sustained, would logically infiuence the issue.” 
1 Whart. Ev. § 20. 


IMPERTINENT. In equity pleading. 
That which does not belong toa pleading, in- 


concludit nee 
Impersonality nei- 


IMPERTINENT 


Togatory, or other proceeding; out of place; 
buperiiuous; irrelevant. 

At law. <A term applicd to matter not 
necessary to constitute the cause of action or 
_ ground of defense. Cowp. 683; 5 East, 275; 
2 Mass. 283. It constitutes surplusage, 
(which see.) 

IMPESCARSE. In old records. To im- 
peach or accuse. Jmpescatus, impeached. 
Blount. 


IMPETITIO VASTI. 
waste, (9. v.) 


IMPETRARE,. In old English practice. 
To obtain by request, as a writ or privilege. 
Bract. fols. 57,1726. This application of the 
word seems to be derived from the civil law. 
Calvin. 


IMPETRATION. In old English law. 
The obtaining anything by petition or en- 
treaty. Particularly, the oblaining of a bene- 
fiee from Rome by solicitation, which benefice 
belonged to the disposal of the king or other 
; lay patron, Webster; Cowell. 


IMPIER. Umpire, (g. v.) 


it 


Impeachment of 


IMPIERMENT. Impairing or prejudic- 
ing. Jacob. 
IMPIGNORATA, Pledged; given in 


pledge, (pignori data;) mortgaged. Aterm 
applied in Bracton to land. Braet. fol. 20. 


IMPIGNORATION. The act of pawn- 
ing or putting to pledge. 


Impius et crudelis judicandus est 
qui libertati non favet. He ts to be judged 
impious and cruel who does not iaver liberty. 
Oo, Litt. 124. 


IMPLACITAREH. Lat. 
Aue. 


IMPLEAD. In practice. 
ecute by due course of law. 


To implead; to 


To sne or pros- 
9 Watts, 47. 


IMPLEADED. Sued or prosee:ited; used 
particularly in the titles of causes where 
there are several defendants; as “A. B., im- 
pleaded with C. D.” 


IMPLEMENTS. Such things as are used 
or employed for a trade, or furniture of a 
house. 11 Mete. (Mass.) 82. 

Whatever may supply wants; particularly 
applied to tools, utensils, vessels, instruments 
of labor; as, the émplements of trade or of 
husbandry, 23 lowa, 359; 6 Gray, 298. 


IMPLICATA. <A term used in merean- 
tile law, derived from the Italian. In order 


595 


IMPLIED CONTRACT 


to avoid the risk of making fruitless voyages, 
merchants have been in the habit of receiving 
small adventures, on freight, at so much per 
cent., to which they are entilled at all events, 
even if the adventure be lost; and this is 
called “implicatu.” Wharton. 4 
T= 


IMPLICATION. Intendment or 
ence, as distinguished from the actual ex- 
pression of a thing in words. Ina will, an 
estate may pass by mere tmplication, with- 
ont any express words to direct its course. 
2 Bl. Comm. 381. 

An inference of something not directly declared, 
but arising from what is admitted or expressed. 

In construing a will conjecture must uct be taken 
for implication; but necessary implication means, 
not natural necessity, but se strong a probability 
of intention that an intention contrary to that 
which is imputed to the testator cannot be sup- 
posed. 1 Ves. & B. 466. 

“Tmplication” is also used in the sense of 
“inference;” @ ¢,, where the existence of an 
intention is inferred from acts not done for 
the sole purpose of communicating it, but 
for some other purpose. Sweet. 


IMPLIED, This word is used in law as 
contrasted with “express;” & ¢., where the 
intention in regard to the subject-matter is 
not manifested by explicit and direct words, 
but is gathered by implication or necessary 
deduction from the circumstances, the gen- 
eral language, or the conduct of the parties. 


IMPLIED ABROGATION. A statute 
is said to work an “implied abrogation” of 
an eariier one, when the later statute con- 
tains provisions which are inconsistent with 
the further continuance of the earlier law; 
or a Slatute is impliedly abrogated when thea 
reason of it, or thea object for which it was 
passed, no longer exists. 


IMPLIED ASSUMPSIT. An under- 
taking or promise not formally made, but J 
presumed or implied from the conduct of a 
party. See Assumrsit. 


IMPLIED CONDITION. See Conpr- 
TION IMPLIED. 


IMPLIED CONSIDERATION, A 
consideration implied or presumed by law, 
as distinguished from an express considera- 
tion, (9. v.) 


IMPLIED CONTRACT. One not creat 
ed or evidenced by the explicit agreement of 
the parties, butinferred by the law, as 3 matter 
of reason and justice, from their acts or con- 
duct. For example, if A, hires B, te do any 
business or perform any work fer him, the 


IMPLIED COVENANT 


596 


IMPOTENTIA EXCUSAT LEGEM 


law implies a contract or undertaking on | impossibility may be either adsolute, t. ¢., 


A.’s parl to pay B. as much as his labor or 
service deserves. 2 Bl. Comm, 443. 


IMPLIED COVENANT. One which is 
not set forth explicitly, but is raised by im- 
plication of Jaw from the use of certain terms 
(“grant,” “give,” “demise,” etc.) in the con- 
veyance, contract, or lease. Sev CovENANT. 


IMPLIED MALICE. Malice inferred 
by legal reasoning and necessary deduction 
from the res geste or the conduct of the party. 
Malice inferred from any deliberate cruel 
act committed by one person against another, 
however sudden... Whart. Hom. 38 What 
is called “general malice” is often thus in- 
ferreu. 


IMPLIED TRUST. A trust raised or 
created by implication of law; a trust im- 
plied or presuined from circumstances. 


IMPLIED USE. See Resuurina Use. 


IMPLIED WARRANTY. A warranty 
raised by the law ag an inference from the 
acts of the parties or the circumstances of the 
transaction. Thus, if the seller of a chattel 
have possession of it and sel? it as his own, 
and not as agent for another, and fora fair 
price, he is understood to warrant the title. 
2 Kent, Comm. 478. 

A warranty implied from the general fenor 
of an instrument, or from particular words 
used in it, although no express warranty is 
mentioned, Thus, in every policy of insur- 
ance there is an implied warranty that the 
ship is seaworthy when the policy attaches, 
3 Kent, Comm. 287; 1 Phil. Ins. 308. 


IMPORTATION. The act of bringing 
goods and merchandise into a country froin 
a foreign country. 


IMPORTS. Importations; goods or other 
property imported or brought into the coun- 
try from a foreign country, 


IMPORTUNITY. Pressing solicitation; 
urgent request; application for a claim or 
favor which is urged with troublesome fre- 
queney or pertinacity. Webster. 


IMPOSITION. 
bution. 


IMPOSSIBILITY. That which, in the 
eonstitulion and course of nature or the law, 
no man can do or perform. 

Impossibility is of the following several 
sorts: 

An act is physteally impossible when It Is 
contrary to the course of nature. Such an 


An impost; tax; contri- 


impossible in any case, (e. g., for A. to reach 
the moon,) or rclatire, (sometimes called 
“impossibility in fact,” ) é. ¢., arising from the 
circumstances of the case, {e. g., for A. to 
make a payment to B., he being a deceased 
person.) ‘To the latter class belongs what is 
sometimes calied “practical impossibility,” 
whieh exists when the act can be done, bub 
only at an excessive or unreasonable cost. 
An act is fegaliy or juridicaily impossitie 
when a rule of law makes it impossible to do 
it; e. g., for A, to make a valid will befora 
his majority. This class of acts must net be 
confounded with those which are possibile, 
although forbidden by law, as to commita 
theft. An act is logieai/y impossible when 
it is contrary to the nature of the transaction, 
as where A. gives property to B, expressly 
for his own benefit, on condition that he 
transfers it toC. Sweet. 


Impossibilium nulla obligatio est. 
There is no obligation to do impossible things, 
Dig. 50, 17, 185; Broom, Max. 249. 


IMPOSSIBLY CONTRACTS. An im- 
possible contract is one which the law will 
not hold binding upon the parties, because of 
the natural or legal impossibility of the per- 
formance by one party of that which is the 
consideration for the promise of the other. 
7 Wait, Act. & Def. 124. 

Impossible contracts, which will be deemed 
void in the eye of the law, or of which the 
performance will be excused, are such con- 
tracts as cannot be performed, either because 
of the nature of the obligation undertaken, 
or because of some supervening event whieh 
renders the performance of the obligation 
either physically or legally impossible. 10 
Amer. & Eng. Ene. Law, 176. 


IMPOSTS. Taxes, duties, or impositions, 
A duty on imported goods or merchandise. 
Story, Const. § 949, 

Tmpost is a tax received by the prince for such 
merchautlises as are broughtinto any haven within 
his dominions from foreign nations. It may in 
some sort ba distinguished from customs, because 
customs are rather that profit the prince maketh 
of wares shipped out; yet they are frequently con- 
founded. Cowell 


IMPOTENCE. In medical jurispru- 
dence. ‘he incapacity for copulation or prep- 
agating the species. Properly used of the 
male; but it has also been used synonymous- 
ly with “sterility.” 


Impotentia excusat legem. Co. Litt. 
29. The impossibility of doing what is re- 


IMPOTENTIAM, ETC. 


quired by the law excuses from the perform- 
> ance. 


IMPOTENTIAM, PROPERTY 
PROPTER. A qualified property, whieh 
may subsist in animals fere nature on ac- 
count ef their inability, ay where hawks, 
herons, or other birds build in a person's 
trees, or conics, ete., make their nests or bur- 
rows in a person’s land, and have young 
there, such person has a qualified property 
in them till they can fly or run away, and 
then such property expires. 2 Steph. Comm. 
(7th Ed.) 8. 


IMPOUND. To shut up stray animals 
or distrained goods in a pound. 

To take into the custody of the law or of a 
court, Thus, a court will sometimes én- 
pound & suspicious document produced at a 
trial. 


IMPRESCRIPTIBILITY. Tho state 
or quality of being incapable of prescription; 
uot of such a character that a right to it can 
be gained by prescription. 


IMPRESCRIPTIBLE RIGHTS. 
Such rights as @ person may use or not, at 
pleasure, since they cannot be lost to him by 
the claims of another founded on preserip- 
tion, 


IMPRESSION. A “case of the first im- 
pression” is one without a precedent; one 
presenting a wholly new state of facts; one 
invoiving a question never before deter- 
mined. 


IMPRESSMENT. A power possessed 
by the English crown of taking persons or 
property to aid in the defense of the country, 
with or without the consent of the persons 
concerned. It is usually exercised to obtain 
hands for the queen’s ships in time of war, 
by taking seamen engaged in merchaut yes- 
sels, (1 Bl. Comm. 420; Maud & P. Shipp. 
123;) but in former times impressment of 
merchant ships was also practiced. The ad- 

‘Mhiralty issues protections against iImpress= 
meni in certain cases, either under statutes 
passed in favor of certain callings (¢. g., per- 
sons employed in the Greenland iisheries) or 
voluntarily. Sweet, 


IMPREST MONEY. Money paid on 
enlisting or impressing soldiers or suilors. 

IMPRETIABILIS. Lat. Beyond price; 
invaluable. 


IMPRIMATUR. Lat. Letit be printed. 
A license or allowance, granted by the con- 


og? 


IMPROPER NAVIGATION 


stituted authorities, giving permission to 
print and publish a beok. This allowance 
was formerly necessary, in England, before 
any book could lawfully be printed, and in 
some other countries is still required, 


IMPRIMERE, To press upon; to im- 
press or press; to imprint or print. 

IMPRIMERY. In some of the ancient 
English statutes this word is used to signify 
& printing-oilice, the art of printing, a print 


| or impression, 


IMPRIMIS. Lat. Inthe first place; first 
of all. 


IMPRISON, To put ina prison; to put 
in a place of confinement. 

To confine a person, or restrain his liberty, 
in any way. 


IMPRISONMENT, The act of putting 
or confining a man in prison; the restraint 
of a man’s personal liberty; coercion exer- 
cised upon a person to prevent the free exer- 
cise of his powers of locomotion, 

It is not a necessary part of the definition 
that the confinement should be in a place 
usually appropriated to that purpose; it may 
be in a locality used only for the specific oc- 
casion; or it may take place without the actu- 
al application of any physical agencies of re- 
straint, (such as locks or bara,) but by verbal 
compulsion and the display of available force. 
See 9 N, H. 491. 


Any forcible detention of a man’s person, or 
contro! over his movements, is imprisonment. 8 
Har. (Del.) 416. 

IMPRISTI. Adherents; followers. Those 
who side with or take the part of another, 
either in his defense or otherwise. 


IMPROBATION. In Seotch law. <An 
action brought for the purpose of having 
some instrument declared false and forged. 
1 Forb. Inst. pt. 4, p. 161. The verb “im- 
prove” (q. 0.) was used in the same sense. 


IMPROPER. Not suitable; unfit; not 
Suited to the character, time, and place. 48 
N. H. 199. Wrongful. 53 Law J. P. D. 65. 


IMPROPER FRUDS. These were de- 
rivative feuds; as, for instance, those that 
were originally bartered and sold to the feud- 
atory for a price, or were beld upon base or 
less honorable services, or upon 4 rent in lieu 
of military service, or were themselves alien- 
able, without mutnal license, or descended 
indifferently to males or females. Wharton. 


IMPROPER WAVIGATION. Any- 
thing improperly dune with the ship or part 


IMPROPRIATE RECTOR 


of the ship in the course of the voyage. L. 
R. 6 C. P. 563. See, also, 55 Law J.P. D. 
65. 


IMPROPRIATE RECTOR. In eccle- 
siastical law. Commonly signifies a lay rece 
tor as opposed toa spiritual rector; just as 
impropriate tithes are tithes in the hands of 
alay owner, as opposed to appropriate tithes, 
which are tithes in the bands of a spiritual 


owner. DBrown. 
IMPROPRIATION. In ecclesiastical 
Jaw. ‘The annexing an ecclesiastical bene- 


fice to the use of a lay person, whether indi- 
vidual or corporate, in the same way as a@p- 
propriation is the annexing of any such 
benelice to the proper and perpetual use of 
some spiritual corporation, whether sole or 
agcregate, to enjoy forever. Brown. 


IMPROVE. InScotch law. To dis- 
prove; to invalidate or impeach; to prove 
false or forged. 1 Forb. Inst. pt. 4, p. 162. 

To improve a lease means to grant a lease 
of unusual duration to encourage a tenant, 
when the soil is exhausted, etc. Bell; Stair, 
Inst. p. 676, § 23, 


IMPROVED. Improved land is such as 
has been reclaimed, is used for the purpose 
of husbandry, and ts cultivated as such, 
whether the appropriation is for tillage, 
meadow, or pasture. “Improve” is synony- 
mous with “cultivate.” 4 Cow. 190. 


IMPROVEMENT. A valuable addition 
made to property (usually real estate) or an 
umeélioration in its condition, amounting to 
more than mere repairs or replacement of 
waste, costing labor or capital, and intended 
to enhance its value and utility or to adapt 
it for new or further purposes. 

In American land law. Anact by which 
a locator or settler expresses his intention to 
eultivate or clear certain land; an act ex- 
pressive of the actual possession of land; as 
by erecting a cabin, planting a corn-field, 
deadening trees in a forest; or by merely 
marking trees, or even by piling up a brush- 
heap. Burrill. 

An “improvement, ” underour land system, does 
not mean a general enhancement of the value of 
the tract from the occupant’s operations. It hasa 
more limited meaning, which bas in view the pop- 
ulation of our forests, and the increase of agricult 
ural products. All works which are direcied to 
the creation of homes for families, or are substan- 
tial steps towards briugiug lands into cultivation, 
have in their results the special character of “im- 
provements,” and, under the land laws of the 
United States and of the several states, are en- 
couraged. Sometimes their minimum extent is 


598 


IMPUTED NEGLIGENUE 


defined as requisite to convey rights. In other 
cases not. But the test which runs threugh all 
the cases is always this: Are they real, and 
made bond fide, in accordance with the policy of 
the law, or are they only colorable, and made for 


| the purpose of fraud and speculation? 87 Ark. 


137. 


In the law of patents. An addition to, 
or modification of, a previous invention or 
discovery, intended or claimed to increase ita 
utility or value. See 2 Kent, Comm. 366- 
372. 


IMPROVEMENTS. A term used in 
leases, of doublful meaning. Tt would seem 
to apply principally to buildings, though 
generally it extends to the aielioration of 
every description of property, whether real 
or personal; but, when contained in any doc- 
ument, its meaning is generally explained 
by other words, 1 Chit. Gen. Pr. 174. 


IMPROVIDENCH, as used in a statute 
excluding one found incompetent to execute 


the duties of an administrator by reason of 


improvidence, means that want of care and 
foresight in the management of property 
which would be likely to render the estute 
and effects of the intestate unsafe, and liable 
to be lost or diminished in value, in case the 
administration should be committed to the 
improvident person. 1 Barb. Ch. 45. 


IMPRUIARE. In old records. To im- 
prove land. Imprutamentwm, the improve 
ment so made of it. Cowell. 


IMPUBES. Lat. In the civillaw. A 
minor under the age of puberty; a male un- 
der fourtesn years of age; a female under 
twelve. Calvin.; Mackeld. Rom. Law, § 138. 


Impunitas continuum atfectum tribuit 
delinqguendi. 4 Coke, 45. Impunity econ- 
firms the disposition to commit crime. 


Impunities semper ad deteriora invi- 
tat. 5 Coke, 109. Impunity always invites 
to greater crimes. 


IMPUNITY. Exemption or protection 
from penalty or punishment. 36 Tex. 153. 


IMPUTATIO. In the civil law. Legal 
liability. 


IMPUTATION OF PAYMENT. In 
the civil law. The application of a payment 
made by a debtor to his creditor. 


IMPUTED NEGLIGENCEH. Negli- 
gence which is not directly attributable te 
the person himself, but which is the negli- 
gence of a person whois in privity with him, 
and with whose fault he is chargeable. 


IK 


sition has always been used to denote the fact 

of seisin, title, or possession, and apparently 
_ serves as an elliptical expression for some 
such phrase as “in possession,” or as an ab- 
breviation for “intitled” or “imvested with 
title,” Thus, in the old books, a tenant is 
said to be “in by lease of his lessor.” Litt. 
§ 82. 


IN ACTION. Attainable or recoverable 
by action; not in possession. A term ap- 
plied to property of which a party has not the 
possession, but only a right to recover ib by 
action. Things in action are rights of per- 
sonal things, which nevertheless ure not in 
possession. See Cuose IN ACTION. 


IN ADVERSUM. Against an adverse, 
unwilling, or resisting party. “A decree 
not by consent, but in adversum.” 3 Story, 
318. 


In eedificiis lapis male positus non est 
removendus. I11 Coke, 69. A stone badly 
placed in buildings is not to be removed. 


IN QUA MANU. 
Fleta, lib. 3, ¢. 14, § 2. 


IN AQUALI JURE. In equal right; 
on an equality in point of right. 


In equal hand. 


In equali jure melior est conditio 
possidentis, In [a case of] equal right the 
condition of the party in possession is the 
better. Plowd. 296; Broom, Max. 713. 


IN AQUALI MANU. In equal hand; 
held equally or indifferently between two 
parties. Where an instrument was deposit- 
ad by the parties to it in the hands of a third 
person, to keep on certain conditions, it was 
suid to be held in wquali manu. Reg. Orig, 
28. 


IN ALIEWO SOLO. In another's land. 
2 Steph. Comm. 20. 


IN ALIO LOCO. 


In alta proditione nullus potest esse 
aeccessorius sed principalis solummodo. 
3 Inst. 188. In high treason no one can be 
an accessary, but only principal. 


In another place. 


In alternativis electio est debitoris. 
In alternatives the debtor has the election. 


In ambigua voce legis ea potius acci- 
pienda est significatio que vitio caret, 
preesertim cum étiam voluntas legis ex 
hoe colligi possit. In an ambiguous ex- 
pression of law, that signification is to be 
preferred which is consonant with equity, 


599 


IN BONIS 


IN. In the law of real estate, this prepo- | especially when the spirit of the law can he 


collected from that. 
Max. 576. 


In ambiguis casibus semper preesum- 
itur pro rege. In doubtful cases the pre 
sumption is always in favor of the king. 


Dig. 1, 3, 19; Broom, 


In ambiguis orationibus maxime sen- 
tentia spectanda est ejus qui eas protul- 
isset. In ambiguous expressions, the inten- 
tion of the person using them is chiefly to be 
regarded. Dig. 50, 17, 96; Broom, Max. 
567. 


In Anglia non est interregnum. In 
England there is no interregnum. Jenk. 
Cent. 205; Broom, Max. 50. 


IN APERTA LUCE. Inopendaylight; 
in the day-time. 9 Coke, 656. 


IN APICIBUS JURIS. Among the 
subtleties or extreme doctrines of the law. 
I Kames, Eq. 190. See Apex JuRis. 


IN ARBITRIUM JUDICIS. At the 
pleasure of the judge. 


IN ARCTA WT SALVA CUSTODIA, 
In close and safe custody. 8 BI. Comm. 415, 


IN ARTICULO. 
diately. Cod. 1, 34, 2, 


IN ARTICULO MORTIS. In the arti- 
ele of death; at the pointof death. 1 Johns. 
159. 


In atrocioribus delictis punitur affec- 
tus licet non sequatur effectus. 2 Rolle 
Ri. 82. In more atrocious crimes the intent ia 
punished, though an effect does not follow. 


In a moment; imme- 


IN AUTRE DROIT. L. Fr. In an- 
other’s right. As representing another. An 
executor, udministrator, or trustee sues in 
autre droit. 


IN BANCO. In bank; inthe bench A 
term applied to proceedings in the court in 
bank, as distinguished from proceedings at 
nist prius. Also, in the English courb of 
common bench. 


IN BLANK. A term applied to the in- 
dorsement of a bill or note, where it consists 
merely of the indorser’s name, without re- 
striction to any particularindorsee. 2Steph. 
Comm. 164. 


IN BONIS. Among the goods or prop- 
erty; in acttial possession. Inst. 4, 2,2. Im 
bonis defuncti, among the goods of the de- 
ceased. 


| 


K 


IN CAMERA 600 IN CONVENTIONIBUS, ETC. 


IW CAMERA. Inchambers; in private. | necessary that each part be true. Wing. 
A cause is said to be heard iz camera either | Max. 18, max. 9. In a condition consisting 
when the hearing is had before the judge in | of divers parts in the copulative, both parts 
his private room, or when all spectators are | must be performed. 


excluded from the court-room. IN CONSIDERATIONE INDE. In 


IN CAPITA. To the heads; by heads or | consideration thereof. 3 Salk. 64, pl. 5. 


polls. Persons succeed'to an Inheritanee in 
eapita when they individually take equal oy Cap DE Aes LEGIS In 
consideration or contemplation of law; in 


shares. So challenges to individual jurors 4 = 

are challenges im ecupita, as distinguished miepance... Det, AUD. 

from challenges to the array. IN CONSIDERATIONE PRAMIS- 
IN CAPITE. Inchief. 2Bl.Comm.60 SORUM. In consideration of the premises. 


Tenure in vapite was aholding direclly from a 

the king. In consimili casu, consimile debot 
esse remedium. MHardr. 65. In similar 
cases the remedy should be similar. 


In easu extreme necessitatis omnia 
sunt communia, Hale, P.O. 54. In cases 
of extreme necessity, everything is in come IN CONSPECTU EJUS. In his sight 
mon. or view. 12 Mod. 95. 


IN CASU PROVISO. Ina/(orthe) case In consuetudinibus, non diuturnitas 
provided. In tali casu editum et provisum, | temporis sed soliditas rationis est con- 
in such case made and provided. Townsh. | sideranda. In custois, not length of time, 
Pi. 164, 165. but solidity of reason, is to be cansidered. 

IN CAUSA. In the cause, as distin- ae oe ie oer hes a Se 
guished from in initialibus,{q.0.) A term |” PS eee ee 


in Scotch practice. 1 Brown, Ch. 252. IN CONTINENTI. Immediately; with- 


IN CHIEF. Principal; primary; directly eee ee ee Ss ee 
obtained. A term applied to the evidence ? 5 Ee 


“ae i ' : nenti.” 
obtained from a witness upon his examina- 
tion in court by the party producing him. In contractibus, benigna; in testa- 
Tenure in chief, or in capite, is a holding | mentis, benignior; in restitutionibus, 
directly of the king or chief lord. benignissima interpretatio facieonda est. 


Co. Litt. 112. In contracts, the interpreta- 
tion is to be liberal; in wills, more liberal, 
in restitutions, most liberal. 


In gcivilibus ministerium excusat, in 
eriminalibus non item. In civil matters 
agency (or service) excuses, but not 80 in 
criminal matters. Lofft, 228; Tray. Lat. In econtractibus, rei veritas potius 
Max. 243. quam scriptura perspici debet. In con- 
tracts, the truth of the matter ought to be 
regarded rather than the writing. Cod. 4, 
22, 1. 


In claris non est locus conjecturis. 
In things obvious there is no room for con- 
jecture. 


IN COMMENDAM. In commendation; 
as a commended living. 1 Bl. Comm. 393. 
See COMMENDA. 

A term applied in Louisiana to a limited 
partnership, answering to the French “en | 
sommandite.” Civil Code La. art. 2510. 


In contractibus, tacite insunt [veni- 
unt] que sunt moris et consuetudinis. 
In contracts, matters of custom and usage are 
tacitly implied. A contract ia understood te 
contain the customary clauses, alLhough they 
are not expressed. Story, Bills, § 143; 3 
Kent, Comm. 260, note; Broom, Max. 842. 


In commodato hse pactio, ne dolus 
preestetur, rata non est. In the contract 
of loan, a stipulation not to be liable for fraud 
is not valid. Dig. 138, 7, 17, pr. 


In contrahenda venditions, ambiguum 
pactum contra venditorem interpretan- 
dum est. In the contract of sale, an am- 
biguous agreement is to be interpreted 

IN COMMUNI. In common. Fleta, | against the seller. Dig. 50, 17, 172. sea 
lib. 3, c. 4, § 2. Id. 18, 1, 21, 


In conjunctivis, oportet utramque par- In conventionibus, contrahentium vo- 
tem esse veram. In conjunctives, it is | luntas potius quam verba spectari pla- 


n xereements, the intention of the 

img parties, rather than the words 
- should be regarded. 17 Johns. 150; 
Max. 551. 


Y CORPORE, In body or aesaraneal 
material thing or object. 


CRASTING. On the morrow. In 
tino Antmarum, on the morrow of All 
js. 1 Bi. Comm. 342. 


In criminalibus, probationes debent 
esse luce clariores. In criminal cases, the 
proofs ought tobeclearer than light. 3 Inst. 
210 


Tn criminalibus, sufficit goneralis ma- 

litia intentionis, cum facto paris gradus, 
In criminal matters or cases, a general mal- 
fee of intention is sufficient, [if united] with 
an act of equal or corresponding degree. 
Bac. Max. p. 65, reg. 15; Broom, Max. 323, 


In criminalibus, voluntas reputabitur 
pro facto. In criminal acts, the will will 
be taken for tha deed. $ Inst. 106. 


IN CUJUS REI TESTIMONIUM. In 
testimony whereof, The initial words of the 
concluding clause of ancient deeds in Latin, 
literally translated in the English forms. 


IN CUSTODiIA LEGIS. Inthe custody 
or keeping of the law. 2 Steph. Comm. 74 


IN DELICTO. In fault. 
DeEicro, ete, 


IN DIEM. For 4 day; for the apace of 
aday. Calvin. 


| In disjunctivis sufficit ulteram partem 
esse veram. In disjunctives it is suficient 
that either part be true. Where a condition 
is in the disjunctive, it is sufficient if either 
part be performed. Wing. Max. 13, max. 
9; 7 East, 272; Broom, Max. 592. 


IN DOMINICO, In demesne. Jn do. 
minico suo ut de feodo, in his demesne as of 
fee. 

IN DORSO. Ontheback. 2 Bl. Comm. 
468; 2Steph. Comm. 164. In dorse recomii, 
on the back of therecord. 5 Coke, 45. Hence 
the English indorse, indorsement, etc. 


See In PART 


In dubiis, benigniora preferenda sunt, 


In doubiful cases, the more favorable views | 


are to be preferred; the more liberal interpre- 
tation is to be followed. Dig. 50, 17, 563 2 
Kent, Comm. 557. 


In dubiis, magis dignum est accipi- 
endum. Braneh, Prine, Indoubtful cases, 
the more worthy is to be accepted. 


601 


IN EXTENSO 


In dubiis, non presumitur pro testa- 
mento. Incases of doubt, the presumption is 
not in favor of awill. Branch, Prine. But 
see Cro. Car. 51. 


IN DUBIOC, In doubt; in a state of un. 
certainty, or in a doubtful case. 


In dubio, hve lepis constructio quam 
verba ostendunt. Jn a case of doubt, that 
is the construction of the law which the 
words indicate. Branch, Prine. 


In dubio, pars mitior est sequenda. 
In doubt, the milder course is to be followed. 


In dubio, sequendum quod futius est. 
In doubt, the safer course is to be adopted. 


IN DUPLO. Indouble, Damnain du- 
plo, double damages. Fleta, lib. 4, e. 10, 


a. 


IN BADEM CAUSA. Inthesame state 
or condition. Calvin. 


IN EMULATIONEM VICINI. In 
envy or hatred of a neighbor. Where an act 
is done, or action brought, solely to hurt or 
distress another, it is said to be in ss 
nem vicizi. 1 Kames, Eq. 56. 


In eo quod plus sit, semper inest at 
minus. In the greater is always included 
the less also. Dig. 50, 17, 110. 


IN EQUITY. In a court of equity, as 
distinguished from a court of law; in the 
purview, consideration, or contemplation of 
equity; according to the doctrines of equity, 


IN ESSE. Inbeing. Actually existing. 
Distinguished from in posse, which means 
“that which is not, but may be.” <A child 
before birth is im posse; after birth, in esse, 


IN EVIDENCE. Included in the evi- 
dence already adduced. The “facts in evi- 
dence” are such as have already been proved J 
in the canse. 


IN EXCAMBIO, Inexchange. Form- 
al words in old deeds of exchange. 


IN EXITU. In issue. 
exitu, of the matter in issue. 


De materia tn 
12 Mod. 372. 


In expositione instrumentorum, mala 
grammatica, quod fieri potest, vitanda 
est. In the construction of instruments, 
bad grammar is to be avoided as much as 
possible, 6 Coke, 39; 2 Pars. Cont. 26, 


IN EXTENSO. In extension; at full 
length; from beginning to end, leaving out Ni 
| nothing, 


IN EXTREMIS 


IN EXTREMIS. In extremity; in the 
last extremity; in the last illness. 20Johns. 
502; 2 Bl. Comm. 375, 500. Agens in ex- 
trvemis, being in extremity. Bract. fol. 3730. 
Declarations in extremis, dying declarations. 
15 Johns. 286; 1 Greenl. Ev. § 156. 


IN FACIE CURIZ. 
court. Dyer, 28. 


IN FACIE ECCLESIA. In the face 
of the church. A term applied in the law 
of England to marriages, which are required 
to be solemnized in a parish church or pub- 
lic chapel, unless by dispensation or license. 
1 Bl. Comm. 439; 2 Steph. Comm. 288, 259. 
Applied in Bracton to the old mode of con- 
ferring dower. Bract. fol. 92; 2 Bl. Comm. 
133, 


IN FACIENDO. In dojng; in feasance; 
in the performance of an act. 2 Story, Eq. 
Jur. § 1308. 


IN FACT. Actual, real; as distin- 
guished from implied or inferred. Result- 
ing from the acts of parties, instead of from 
the act or intendment of law. 


In the face of the 


IN FACTO. 


dicit, in factsays. 1 Salk. 22, pl. 1. 


In facto quod sa habet ad bonum et 
malum, magis de bono quam doe malo 
lex intendit. In an act or deed which ad- 
mits of being considered as both good and 
bad, the law intends more from the good 
than from the bad; the law makes the more 
favorable construction. Co. Litt. 78. 


In favorabilibus magis attenditur quod 
prodest quam quod nocet. In things fa- 
yored, what profits is more regarded than 
what prejudices. Bac. Max. p. 57, in reg. 
12. 


IN FAVOREM LIBERTATIS. 
vor of liberty. 


In fa- 


IN FAVOREM VITZ. In fayor of 
life. 


In favorem vite, hbertatis, et innocen- 
tis, omnia presumuntur, In favor of life, 
liberty, and innocence, every presumption is 
made. Lofft. 125. 


IN FHODO. In fee. Bract. fol. 207; 
Fleta, lib. 2, c. 64, § 15. Seisitus in feodo, 
seised in fee. Fieta, lib. 3, ¢. 7, § 1. 


tit. In the fiction of law there is always 
equity; a legal fiction is always consistent 


602 


In fact; indeed. Jn facto 


IN GENERALI PASSAGIO 


with equity. 
127, 130. 


IN FIERI. In being made; in process 
of formation or development; hence, inconi- 
plete or inchoate. Legal proceedings are de 
scribed as in fieré until judgment is entered, 


IN FINE. Lat. Attheend. Used, in 
Teferences, to indicate that the passage cited 
is at the end of a book, chapter, section, ete. 


IN FORMA PAUPERIS. In the char- 
acter or manner of a pauper. Describes per- 
mission given toa poor person to sue with. 
out liability for costs. 


IN FORO. 
tribunal. 


IN FORO CONSCIENTIA&s. In the 
tribunal of conscience; conscientiously; con- 
sidered from a moral, rather than a legal, 
point of view. 


IN FORO CONTENTIOSO. 
forum of contention or litigation. 


IN FORO ECCLESIASTICO. In an 
ecclesiastical forum; in the ecclesiastical 
court, Fieta, lib. 2, ¢. 57, § 13. 


IN FORO SH#CULARI. In a secular 
forum er court. Fleta, lib, 2, ¢ 57, § 14; 1 
Bl. Comm. 20. 


IN FRAUDEM CREDITORUM. In 
fraud of creditors; with intent to defraud 
creditors. Inst. 1, 6, pr., 3. 


IN FRAUDEM LEGIS. 
the law. 38 Bl. Comm. 94. 
or view of evading the law. 
432. 


IN FULL. Relating to the wholeor full 
amount; asareceipt in full. Complete; giv- 
ing all details. 


IN FULL LIFE. Continuing in both 
physical and civil existence; that is, neilher | 
actually dead nor ctvititer mortuus. 


1] Coke, 51a; Broom, Max. 


In a (or the) forum, court, or 


In the 


In fraud of 
With the intent 
1 Johns. 424, 


IN FUTURO. In future; at a future 


time; the opposite of in presenti. 2 Bl. 
Comm. 166, 175. 
IN GENERALI PASSAGIO, In the 


general passage; that is, on the journey to 
Palestine with the general company or body 
of Crusaders. This term was of frequent oc 


| eurrence in the old law of essoins, as ameang 
, of accounting for the absence of the party, 
In fictione juris semper xquitas exis- | 


and was distinguished from stmplex passagt- 
wm, Which meant that he was performing a 
pilgrimage tothe Holy Land alone. 


ERALIBUS, ETC. 


leralibus versatur error. Error 
general expressions. 3 Sum. 290; 
Sale 292. 


GENERE. In kind; in the same 
or class; the same in quantity and 
» dub not individually the same. In 
man law, things which may be given 
restored in genere are distinguished from 
ich a3 musl be given or restored in specie; 
t is, identicaliy. Mackeld, Rom. Law, 
ie 


IN GREMIO LEGIS. In the bosom of 
elaw; inthe protection of the law; in abey- 
ance. 1 Coke, 13la; T. Raym. 319. 


IN GROSS. In a large quantity or sum; 

without division or particulars; by whole- 

sale. 

: At large; not annexed to or dependent up- 
on another thing. Common in gross is such 

as is neither appendant nor appurtenant to 

and, but is annexed to a man’s person. 2 

Bi. Comm. 34. ‘ 


‘IN HAC PARTE. In this behalf; on 
this side. 


IN HAC VERBA. 
the same words, 


In these words; in 


In heredes non solent transire action- 
08 que peenales ex maleficio sunt. 2 Inst. 
442. Penal actions arising from anything of 
4 criminal nature do not pass to heirs. 


| In his enim que sunt favorabilia ani- 
ms, quamvis sunt damnosa rebus, fiat 

| aliquando oxtentio statuti. In things that 

| are favorable to the spirit, though injurious 
to property, an extension of the statute should 
sometimes bea made. 10 Coke, 101. 


In his quee de jure communi omnibus 
eonceduntur, consuetudo alicujus patric 
vel loci non est allegenda. 11 Coke, 85. 
In those things which by common right are 
conceded to all, the custom of a particular 
district or place is not to be alleged. 

EN HOC. In this; in respect to this. 


IN IISDEM TERMINIS., 
terms. 9% Hast, 487. 


In the same 


IN INDIVIDUO. In the distinct, iden- 
tical, or individual form; in specie, 
Bailm. § 97. 


IN INFINITUM, Infinitely; indefinite 
ty. Imports indefinite succession or contin- 
vance. 


Story, 


603 


me 


IN JURE 


IN INITIALIBUS. In the prelimina- 
ries. A term in Seotch practice, applied to 
the preliminary examination of a witness as 
to the following points: Whether he knows 
the parties, or bears ill will to either of them, 
or has received any reward or promise of re 
wird for what he may say, or can lose or 
gain by the cause, or has been told by any 
person what to say. If tiie witness answer 
these questions satisfactorily, he is then ex- 
amined i causa, in the cause. Bell, Dict. 
“Evidence.” 


IN INITIO, In or at the beginning. 
Im initio litis, at the beginning, or in the 
first stage of the suit. Braet, fol. 400. 


IN INTEGRUM. ‘To the original or 
former state. Calyin. 


IN INVIDIAM. To excite a prejudice, 


IN INVITUM. Against an unwilling 
party; against one not assenting. A term 
applied to proceedings against an adverse 
party, to which he does not consent. 


IN IPSIS FAUCIBUS. In the very 
throat or entrance. Jn tpsis faucibus of a 
port, actually entering a port. 1. Rob. 
Adin, 288, 234. 


IN ITINERE, In eyre; on a journey or 
circuit. In old English law, the justices in 
itinere (or in eyre) were those who made a 
circuit through the kingdom onee in seven 
years for the purposes of trying causes, 3 
Bl. Comm. 58. 

In course -of transportation; on the way; 
nof delivered to the vendee. In this sense 
the phrase is equivalent to “in tvansitu.” 


IN JUDGMENT. Ina court of justice; 
in aseat of judgment. Lord Tale is called 
“one of the greatest and best men who ever 
satin judgment.” 1 East, 306. 


in judiciis, minori cetati succurritur. 


In courts or judicial proceedings, infaney is - 


aided orfavored. Joenk. Cent. 46, case 89. 


IN JUDICIO. In Roman law. In the 
course of an actual trial; before a judge, 
(judea.) A cause, during its preparatory 
stages, conducted before the pretor, was 
said to be ¢ jure; in its second stage, afler 
it had been sent to a judex for trial, it was 
said to ba in judicio. 


In judicio non ereditur nisi juratis. 
Cro. Car. 64. In a trial, crecence is given 
only to these who are sworn. 


IN JURE. In law; according to law. 
In the Roman practice, the prucedura in an 


K 


IN JURE ALTERIUS 


action was divided into two stages. The 
first was said to be in jure; it took place be- 
fore the praetor, and included the formal and 
introductory pari and the settlement of yues- 
tions of law. The second stage was com- 
mitted to the judex, and comprised the in- 
vestigation and trial of the facts; this was 
said to be én judicio. © 


IN JURE ALTERIUS. 
right. Hale, Anal. § 26. 


In jure, non remota causa sed proxi- 
ma spectatur. Dac. Max. reg. 1. In law, 
the proximate, and not the remote, cause is 
regarded. 


IN JURE PROPRIO. 
right. Hale, Anal. § 26. 


IN JUS VOCARE. To call, cite, or 
summon to court. Inst. 4, 16, 3; Calvin. 
in jus vecando, summoning to court. 8 Bl. 
Comm. 279. 


IN KIND. In the same kind, class, or 
genus. A loan is returned “in kind” when 
not the identical ariicle, but one correspond- 
ing and equivalent to it, is given to the 
lender. Seo IN GENERE. 


IN LAW. In the intendment, contem- 
plation, or inference of the law; implied or 
inferred by law; existing in law or by force 
of law. See In Fact. 

IN LECTO MORTALI. Onthe death- 
bed. Fleta, lib. 5, ¢. 28, § 12. 


IN LIMINE. Onorat thethreshold; at 
the very beginning; preliminarily. 


In another’s 


In one’s own 


IN LITEM. For a suit; to the suit. 
Greenl. Ey. § 348. 
IN LOCO. In place; in lieu; instead; 


Townsh. Pl. 38. 


IN LOCO PARENTIS. In the place of 
a parent; instead of a parent; charged, facti- 
tiously, with a parent’s rights, duties, and 
responsibilities. 


in the place or stead. 


In majore summa continetur minor.,, 


5 Coke, 115. In the greater sum is contained 
the less. 


IN MAJOREM CAUTELAM. For 
greater security. 1 Strange, 105, arg. 


IN MALAM PARTEM. Inabadsense, 
so as to wear an evil appearance. 


In maleficiis voluntas spectatur, non 
exitus. In evil deeds regard must be bad to 
the intention, and not to the result. Dig. 
48, 8, 14; Broom, Max. 324 


604 


————— ee ee ——— ——— 


IN NOMINE DEI, AMEN 


In mateficio, ratihabitio mandato com- 
paratur. Ina case of malfeasance, ratifiea- 
tion is equivalent tocommand. Dig, 50, 17, 
152, 2. 


In maxima potentia minima licentia, 
In the greatest power there is the least free- 
dom. Hob. 159. 


IN MEDIAS RES. Into the heart of 
ihe subject, without preface or introduction. 


IN MEDIO. Intermediate. A teri ap 
plied, in Scotch practice, to a fund held be- 
tween parties litigant. 


In mercibus illicitis non sit commer- 
cium. MThereshould beno commerce in illicit 
or prohibited goods. 8 Kent, Comm. 262, 
note. 


IN MERCY. To bein mercy is to be at 
the discretion of the king, lord, or judge in 
respect to the imposition of a fine or other 
punishment, 


IN MISERICORDIA. The entry on 
the record where a party was in mercy was, 
“Tdeo in misericordia,* etc. Sometimes 
“misericordia” means the being quit of all 
amercements. 


IN MITLORI SENSU. In the milder 
sense; in the less aggravated acceptation, 
In actions of slander, it was formerly the rule 
that, if the words alleged would admit of two 
eonstructions, they should be taken in the 
less injurious and defamatory sense, or in 
mitioréi sensu. 


IN MODUM ASSIS. In the manner 
or form of an assize. Bract. fol. 183. In 
modum jurata, in manner of a jury. Id. 
fol. 1816. 


IN MORA. In default; literally, in de- 
lay. In the civil law, a borrower who omits 
or refuses to return the thing loaned at the 
proper time is said to be tz mora. Story, 
Bailm. §§ 254, 259. 

In Scotch law. A creditor who has be- 
gun without completing diligence necessary 
for attaching the property of his debtor is 
said to bein mora. Bell. 


IN MORTUA MANU. Property owned 
by religious societies was said to be held ta 
mortua manu, or in mortmain, since relig- 
ious men were civiliter mortut. 1 Bl. Comm. 
479; Tay]. Gloss. 


IN NOMINE DEI, AMEN. In the 
name of God, Amen. <A solemn introduc. 
tion, anciently used in wills and many other 


IN NOTIS 


wills at the present day. 
IN NOTIS. 
In novo casu, novum remedium appo- 


pndaum est. 2 Inst. 3. <A new remedy is 
te be applied to a new case. 


IN NUBIBUS. In the clouds; in abey- 
g@nce; in custody of law. In nuhibus, in 
mare, in terri, vel in eustodia legis, in the 


In the notes. 


law. ‘ayl. Gloss. In case of abeyance, the 
inheritance is figuratively said to rest im nu- 
bibus, or tm gremio legis. 


IN NULLIUS BONIS. Among the 
goods or property of no person; belonging to 
no person, as treasure-trove and wreck were 
anciently considered. 


; IN NULLO EST ERRATUM. In 
nothing is there error. The name of the 
common plea or joinder in error, denying the 
existence of errcr in the record or proceed- 
_ ings; which is in the nature of a demurrer, 
| and at once refera the matter of law arising 
| thereon to the judgment of the court. 2 
| Tidd, Pr. 1173; 7 Mete. ( Mass.) 285, 287. 


In obscura voluntate manumittentis, 
 favendum est libertati. Where the ex- 
__ pression of the will of one whoseeks to manu- 
mit a slave is ambiguous, liberty is to be 
Meeavoral. Dig. 50, 17, 179. 


In obscuris, inspici solere quod veri- 
similius est, aut quod plerumque fieri 
solet, In obscure cases, we usually look at 
whet is most probable, or what most com- 
toonly happens. Dig. 50, 17, 114. 


In obscuris, quod minimum est sequi- 
mur. In obscure or doubtful cases, we fol- 
low that which is the least. Dig. 50, 17,9; 2 
Kent, Comm. 557. 


IN ODIUM SPOLIATORIS. In hatred 
of a despoiler, robber, or wrong-doer. 1 
Gall. 174; 2 Story, 99; 1 Greenl. Ev. § 348. 


In odium spoliatoris omnia przesu- 
muntur. To the prejudice (in condemna- 
tion) of a despoiler all things are presumed; 
every presumption is made against a wrong- 
doer. 1 Vern. 452. 


In omni actione ubi duw conecurrunt 
districtiones, videlicet, in rem et in per- 
sonam, illa districtio tenenda est que 
magis timetur et magis ligat. In every 
aclion where two distrasses concur, that is, 
in rem and in personam, that is to be chosen 
which ig most dreaded, and which binds most 


air, sea, or earth, or in the custody of the | 


605 


The translation is often used | firmly. 


i 


IN PAPER 


Bract. fot. 872; Fleta, 1 6, «. 14, 
§ 28. 

In omni re nascitur res ques ipsam 
rem exterminat. In everything there 
arises a thing which destroys tie thing itself. 
Everything contains the element of its own 
destruction. 2 Inst. 15. 


IN OMNIBUS. in all things; on all 
points. “A case parallel in omnibus.” 10 
Mod. 104. 


In omnibus contractibus, sive nomi- 
natis sive innominatis, permutatio con- 
tinetur. In all contracts, whether nominate 
or innominate, an exchange [of value, Zz. e., 
a consideration] is implied. Gravin. lib. 2, 
§ 12; 2 Bl. Comm. 444, note, 


In omnibus obligationibus in quibus 
dies non ponitur, przsenti die debetur. 
In all obligations in which a date is not put, 
the debt is due on the present day; the lia- 
bility accrues immediately. Dig. 50, 17, 14. 


In omnibus [fere] penalibus judiciis, 
et setati et imprudentise succurritur. In 
nearly all penal judgments, linmaturity of 
age and imbecility of mind are favored. Dig. 
50, 17, 108; Broom, Max. 314. 


In omnibus quidem, maxime tamen 
in jure, squitas spectanda sit. In all 


| things, but especially in law, equity is to be 


regarded. 
§ 257. 


IN PACATO SOLO. In acountry which 
is at peace, 


IN PACE DEI ET REGIS. In the 
peace of God and the king. Fleta, lib. 1, ¢ 
31, § 6. Formal words in old appeals of 
murder. 


IN PAIS. This phrase, a8 applied to a 
legal transaction, primarily means that it 
has taken place without legal proceedings. 
Thus a widow was said Lo make a request in 
pais for her dower when she simply applied 
to the heir without issuing a writ. (Co. 
Litt. 326.) So conveyances are divided into 
those by matter of record and those by mat- 
ter in pais. In some cases, however, “mat 
ters in pais” are opposed not only to “mat. 
ters of record,” but aiso to “matters in writ- 
ing,” t. e., deeds, a3 where estoppel by deed 
is distinguished from estoppel by matter in 
pats. (Id. 352a.) Sweet. 


IN PAPER. A term formerly applied 
te the proceedings in a cause before the rec- 
ord was made up. 3 Bl. Comm. 406; 2 Bur- 


Dig. 50, 17, 90; Story, Bailm. 


IN PARI CAUSA 


rows, 1098. Probably from the circumstance 
of the record being always on parchment. 
The opposite of “on record.” 1 Burrows, 
322, 


IN PARI GAUSA. In an equal cause. 
In & cause where the parties on each side have 
equal rights. . 


In pari causa possessor potior haberi 
debst. In an equal cause he who has the 
possession should be preferred. Dig. 50, 17, 
128, 1. 


IN PART DELICTO. In equal fault; 
equally culpable or criminal; in a case of 
equal fault or guilt. 


In pari delicto potior est conditio 
possidentis, [defendentis.] In a case of 
equal or mutual fault [between two parties] 
the condition of the party in possession [or 
defending] is the better one. 2 Burrows, 
926. Whers each party is equally in faull, 
the law favers him who is actually in posses- 
sion. Broom, Max. 290, 729. Where the 
fault is mutual, the law will leave the case 
as it finds it, Story, Ag. § 195. 


IN PARI MATERIA. Upon the same 
matter or subject. Statutes in part materia 
are 10 be construed together. 7 Conn. 456. 


IN PATIENDO, In suffering, permit- 
ting, or allowing, 


IN PEHCTORE JUDICIS, Inthe breast 
of the judge. Latch, 180. A phrase applied 
to a judgment. 


IN PEJOREM PARTEM. In the worst 
part; on the worst side. Latch, 159, 160. 


IN PERPETUAM REI MEMORIAM, 
In perpetual memory of a matter; for pre- 
serving a record of a matter. Applied to 
depositions taken in order to preserve the 
testimony of the deponent. 


IN PERPETUUM REI TESTIMO- 
NWIUM. In perpetual testimony ofa matter; 
for the purpose of declaring and settling a 
thing forever. 1 Bl. Comm. 86. 


IN PERSON. A party, plaintiff or de- 
fendant, who sues out a writ or other pro- 
cess, or appears to conduct his cage in court 
himself, instead of through a solicitor or 
counsel, is said to act and appear in persan. 


IN PERSONAM, IN REM. In the Ro- 
man Jaw, from which they are taken, the ex- 
pressions “iz rem” and “in personam” were 
always opposed to one another, an act or pro- 
ceeding i personam being one done or di- 


606 


IN P@NALIBUS CAUSLIS, ETC, 


rected against or with reference to a specifi 
person, while an act or proceeding dm rem. 
was one done or directed with reference to 
no specific person, and consequently against 
or with reference to all whom it might con- 
eern, or “all the world.” The phrases were- 
especially applied to actions; an aclio in per- 
sonam being the remedy where a claim 
against a specific person arose out of an ob- 
ligation, whether ex coutractu or ex male- 
Jieio, while an actio in rem was one brought 
for the assertion of a riglt of property, ease- 
ment, status, elc,, against one who denied or 
infringed it. See Inst. 4, 6, 1; Gaius, 4, 1, 
1-10; 5 Sav. Syst. 13, ef seq.; Dig. 2, 14, 7, 
$7 dd. 4, 2,9). 1. 

From this use of the terms, they have come 
to be applied to signify the antithesis of 
“available against a particular person,” and 
“available against the world atlarge.” Thus, 
jura in personam are rights primarily avail- 
able against specifie persons; jura in rem, 
rights only available against the world ak 
large, 

So a judgment or decree is said to ba in rem 
when it binds third persons. Such is the sen- 
tence of a court of admirally on a question of 
prize, or a decree of nullity or dissolution of 
marriage, or a decree of a court in a foreign 
country as to the status of a person domiciled 
there. 

Lastly, the terms are sometimes used to 
signify that a judicial proceeding operates 
on athing or a person. Thus, if is said of 
the court of chancery that it acts in perso- 
nam, and not in rem, meaning that its de- 
crees operate by compelling defendants te de 
what they are ordered to do, and not by pro- 
ducing the effect directly. Sweet. 


In personam aetio est, qua cum 60- 
agimus qui obligatus est nobis ad faci- 
endum aliquid vel dandum. The aciion 
in personam is that by which we sue him 
who is under obligation to us to do something: 
or give something. Dig. 44, 7, 25; Bract. 
1018. 


IW PIOS USUS. For pious uses; for 
religious purposes. 2 Bl. Comm, 505, 


IN PLENA VITA. Infull fe. Yearb. 
P. 18 Hen. VI. 2. 


IN PLENO COMITATU. In fall. 
county court. 3 Bl. Comm. 36. 


IN PLENO LUMINE. In public; in 
common knowledge; in the light of day. 


In peenalibus causis benignius inter- 
pretandum est. In penal causes or cases,. 


IN POSSE 


more favorable interpretation should be 
ted. Dig. 50, 17, (197,) 155, 2; Plowd. 
6b, 124; 2 Hale, P. C. 365. 

IN POSSE. 

ual existence. 
IN POTESTATE PARENTIS. Inthe 


er Of a parent. Inst. ], 8, pr.; Id. 1, 9; 
Comm. 498. 


IN PR&MISSORUM FIDEM. In 
coufirmation or attestation of the premises. 
A notarial phrase. 


In possibility; not in act- 
See In Esse. 


In preeparatoriis ad judicium favetur 
actori. 2 Inst. 57. In things preceding 
judgment the plaintiff is favored. 


IN PRASENTI. 
2 Bl. Comm. 166. 
futuro. 


In preesentia majoris potestatis, minor 
potestas cessat. In the presence of the su- 
perior power, the inferior power ceases. 
Jenk. Cent. 214, c. 53. Tho less authority 
iy merged in the greater. Broom, Max. 111. 


' IN PRENDER. L. Fr. In taking. A 
term applied to such incorporeal heredita- 
ments as a party entitled to them was to take 

| for himself; such as common. 2 Steph. 
Comm. 23; 3 Bl. Comin. 15. 


In pretio emptionis et venditionis, 
naturaliter licet contrahentibus se cir- 
cumvenire. In the price of buying and sell- 
ing, it is naturally allowed to the contracting 
parties to overreach each other. 1 Story, 
Cont. 606. 


IN PRIMIS. In the first place. 
phrase used in argument. 


IN PRINCIPIO. 
IN PROMPTU. In readiness; alt hand. 


At the present time. 
Used in opposition to in 


A 


At the beginning. 


In propria causa nemo judex. Noone 
can be judge in his owneause. 12 Coke, 13. 


IN PROPRIA PERSONA. 
own proper person. 


In one’s 


In quo quis delinquit, in eo de jure est 
puniendus. In whatever thing one offends, 
in that is he rightfully to be punished. Co. 
Litt. 23386; Wing. Max. 204, max. 58. The 
punishment shall have relation to the nature 
of the offense. 


IN RE. In the affair; in the matter of. 
This is the usual method of entitling a judi- 
cial proceeding in which there are not adver- 
sary parties, but merely some ves concerning 
whieh judicial action is to be taken, such as 


607 


SS 88 
ee 


IN REBUS, ETC. 


a bankrupt’s estate, an estate in the probate 
court, a proposed public highway, ete. It is 
also sometimes used as a designation of a 
preceeding where one party makes an appli- 
cation on his own behalf, but such proceed- 
ings are more usually entitled “Za parte 


” 
. 


In re communi neminem dominorum 
jure facore quicquam, invito altero, 
posse. One co-proprietor can exercise no 
autherity over the common property against 
the will of the other. Dig. 10, 3, 28. 


In re communi potior est conditio 
prohibentis. In a partnership the condi- 
tion of one who forbids is the more favora- 
ble. 


In ve dubia, benigniorem interpreta- 
tionem sequi, non minus justius est 
quam tutius. In a doubtful matter, to 
follow the more liberal interpretation is not 
less the juster than the safer course. Dig. 
Be Ui pleas 


In re dubia, magis inficiatio quam 
affirmatio intelligenda. In a doubtful 
matter, the denial or negative is to be under- 
stvod, [or regarded, ] rather than the aflirm< 
ative. Godb, 37. 


In re Inpanari, testes lupanares admit- 
teutur. In a matier concerning a brothel, 
prostitutes are admitted as witnesses. 6 
Barb, 320, 324, 


In re pari potiorem causam e6sse pro- 
hibentis constat. Inathing equally shared 
[by several] it is clear that the party refus- 
ing [to permit the use of it] has the better 
cause. Dig. 10, 3, 28. A maxim applied 
to partnerships, where one partner has a 
right to withhold his assent to the acts of 
his copartner. 38 Kent, Comm. 46. 


In re propria iniquum admodum est 
alicui licentiam tribuere sententis. It 
is extremely unjust that any one should be 
judge in his own cause. 


In rebus manifestis, errat qui authori- 
tates legum allegat; quia perspicue vera 
non sunt probanda. In clear cases, he 
mistakes who cites legal authorities; for ob- 
vious truths are not to be proved. 5 Coke, 
67a. Applied to eases too plain to require 
the support of authority; “because,” says 
the report, “he who endeavors to prove 
them obscures them.” 


In rebus que sunt favorabilia anim, 
quamvis sunt damnosa rebus, fiat ali- 
quando extensio statuti. 10 Coke, 101. 


IN REM 


{In things that are favorable to the spirit, 
though injurious to things, an extension of 
a statute should sometimes be made. 


IN REM. A technical term used to des- 
ignate proceedings or actions instituted 
against the thing, in contradistinction to per- 
sonal actions, which are said to be in pe7so- 
nam. Sea In Personam. 


It is true that, in a strict sense, a proceeding in 
rem is one taken directly against property, and 
has for its object the disposition of property, with- 
out reference to the title of individual claimants, 
but, in a larger and more general sense, the terms 
are applied to actions between parties, where the 
direct object is to reach and dispose of property 
owned by them, or of some interest therein. Such 
are cases commenced by attachment against the 
property of debtors, or instituted to partition real 
estate, foreclose a mortgage, orenforce alien. So 
far as they affect property in this state, they are 
substantially proceedings in rem in the broader 
sense which we have mentioned. 95 U.S. 734. 


In rem actio est per quam rem nos- 
tram que ab alio possidetur petimus, et 
semper adversus eum est qui rem possi- 
det. The action in rem is that by which we 
seek our property which is possessed by an- 
other, and is always against him who pos- 
sesses the property. Dig. 44, 7, 25; Braet. 
fol. 102. 


IN RENDER. A thing is said to lie in 
render when it must be rendered or given 
by the tenant; as rent. It is said to lie in 
prender when it consists in the right in the 
lord or other person to take something. 


In republica maxime conservanda 
sunt jura belli. Ina state the laws of war 
are to be especially upheld. 2 Inst. 58. 


IN RERUM NATURA. In the nature 
of things; in the realm of actuality; in exist- 
ence. Ina dilatory plea, an allegation that 
the plaintiff is not tn rerum natura is equiv- 
alent to averring that the person named is 
fictitious. 3 BI. Comm. 301. In the civil 
law the phrase is applied to things. Inst. 
Pay PAG te 


In restitutionem, non in ponam heres 
succedit. The heir succeeds to the restitu- 
tion, not to the penalty. An heir may be 
compelled to make restitution of a sum un- 
lawfully appropriated by the ancestor, but is 
not answerable criminally, as for a penalty. 
2 inst. 198. 


In restitutionibus benignissima inter- 
pretatio facienda est. Co, Litt.112. The 
most benignant interpretation is to be made 
in restitutions. 


608 


IN STIPULATIONIDUS, ETC. 


In satisfactionisus non permittitur 
amplius fieri quam semel factum est. In 
payments, more must not be received than 
has been received once for all. 9 Coke, 53, 


IN SCRINIO JUDICIS. In the writ- 
ing-case of the judge; among the judge’s pa- 
pers. “That is a thing that rests in serinto 
judicis, and does not appear in the body of 
the decree.” Plardr. 51. 


IN SEPARALI. In several; in several- 
ty. Fleta, lib. 2, ¢. 54, § 20. 


IN SIMILI MATERIA. Dealing with 
the same or a kindred subject-matter. 


IN SIMPLICI PEREGRINATIONE. 
In simple pilgrimage. Bract. fol. 338. A 
phrase in the old law of essoins. See In 
GuNERALI PASSAGIO. 


IN SOLIDO. In thecivil law. Forthe 
whole; asa whole. An obligation in solide 
ig one where each of the several obligors is 
liable for the whole; that is, it is joint and 
several. Possession in solidum is exclusive 
possession. 

When several persons obligate themselves 
to the obligee by the terms “iz selido,” or use 
any other expressions which clearly show 
that they intend that each one shall be sepa. 
rately bound to perform the whole of the ob- 
ligation, itis called an “obligation tn solide” 
on the part of the obligors, Civil Code La. 
art, 2082. 


IN SOLIDUM. For the whole. Si 
plures sint fidejussores, quotquot erunt nau- 
mero, singuli in solidum tenentur, if there 
be several sureties, however numerous they 
may be, they are individually bound for the 
whole debt. Inst. 3, 21,4. In parte sive 
in solidum, for a part or for the whole. Id. 
4,1, 16. See Id. 4, 6, 20; Id. 4, 7, 2. 


IN SOLO. In the soil or ground. Jn 
solo alieno, in another’s ground. Jn solo 
proprio, in one’s own ground. 2 Steph. 
Comm, 20. 


IN SPECIE. Specific; specifically. Thus, 
to decree performance tm specie is to dceree 
specific performance, 

in kind; in the same or like form. <A 
thing is said to exist i specie when it re 
tains its existence as a distinct individual of 
a particular class. 


IN STATU QUO. 
which it was. 


In the condition in 
See STATUS Quo. 


In stipulationibus cum queritur quid 
actum sit verba conira stipulatorem in- 


JLATIONIBUS, ETC. 


sunt. In the construction of 
s wards are interpreted against the 
ng them. Thus, the construction 
fpulatio is against the stipulator, 

the eonsiruction of the promissio 
inst the promissor. Dig. 45, 1, 38, 18; 
, Max, 599. 


n stipulationibus, id tempus specta- 
quo contrahimus. in stipulations, 
time when wecontract is regarded. Dig. 
7, 144, 1. 


IN STIRPES. In the law of intestate 
cession. According to the roots or stocks; 
tepresentation; as distinguished from 
guecession per captia. See PER STIRPES; 
‘Per Carira. 


IN SUBSIDIUM. In aid. 


In suo quisque negotio hebetior est 
quam in aliono. Every one is more dull 
‘in his own business than in another's. 


IN TANTUM. In so much; so much; 
#0 far; so greatly. Reg. Orig. 97, 106. 


IN TERMINIS TERMINANTIBUS. 
In terms of determination; exacily in point. 
11 Coke, 405. In express or determinate 
terms. 1 Leon. 93, 


IN TERROREM. In terror or warn- 
ing; by way of threat. Applied to legacies 
piven upon condition that the recipient shall 
not dispute the validity or the dispositions of 
the wills such a condition being usually re- 
garded as a mere threat. ° 


: IN TERROREM POPULI. Lat. To 
the terror of the people. A technical phrase 
necessary in indictments for riots. 4 Cur. 
& P. 573. 


In testamentis plenius testatoris in- 
tentionez scrutamur. In wills we more 
especially seek out the intention of the testa- 
tor. 3 Bulst, 103; Broom, Max. 555, 


In testamentis plenius voluntates tes- 
tantium interpretantur. Dig. 50, 17, 12. 
In wills the intention of testators is more es- 
pecially regarded. “That is to say,” says 
Mr. Broom, (Max., 568,) “a will will receive 
a more liberal construction than its strict 
meaning, if alone considered, would permit.” 


In testamentis ratio tacita non debet 
ecousiderari, sed verba solum spectari 
debent; adeo per divinationem mentis 
averbis recederve durum est. In wiilsan 
unexpressed meaning ought uot to be con- 
sidered, but the words alone ought to be 

AM.DIOT.LAW—39 


60Y 


oe ee ee a EE SE ES 
eS 


IN WITNESS WHEREOF 


looked to; se bard is it to recede from the 
words by guessing at the intention. 


IN TESTIMONIUM. Lat. 
ness; in svidence whereof. 
IN TOTIDEM VERBIS. In so many 


words; in precisely the same words; ward 
for word. 


IN TOTO. In the whole; wholly; com- 
pletely; as theaward is void t7 tote. 


In wit- 


In toto et pars continetur. Inthe whole 
the part also is contained. Dig. 50, 17, 113. 


In traditionibus scriptorum, non quod 
dictum est, sed quod gestum est, inspi- 
eitur. In the delivery of writings, not what 
is said, but what is done, is looked to. 9 
Coke, 1387. 


IN TRAJECTU. 
on the vovage over. 
3 C0. Rob. Adm. 141, 


IN TRANSITU. Intransit; on the way 
or passage; while passing from one persen 
or place Loanother. 2 Kent, Comm. 540-552. 
On the voyage. 10. Rob. Adm. 332. 


IN VACUO. Without object; without 
concomitants or coherence. 


IN VADIO. 
Comin. 157. 


IN VENTRE SA MERE. L. Fr. In 
his mother’s womb; spoken of an unborn 
ebild. 


In veram quantitatem fidejussor tene- 
atur, nisi pro certa quantitate accessit. 
Let the surety be holden for the true quan- 
tity, unless he agree for a certain quantity. 
17 Mass, 597. 


In verbis. non verba, sed res et ratio, 
querenda est. Jenk. Cent. 182. In the 
construction of words, not the mere words, 
but the thing and the meaning, are to be in- 
quired after. 


IN VINCULIS. In chains; in actual 
custody, Gilb, Forum Rom. 97. 

Applied also, figuratively, to the condition 
of a person who is compelled to submit to 
terms which oppression and his necessities 
impose on him. 1 Story, Eq. dur. § 3U2. 


IN VIRIDI OBSERVANTIA. Fres- 
ent to the minds of men, and in full force 
and operation. 


IN WITNESS WHEREC?. The ini- 
tial words of the concluding clause in deeds: 
“In witness whereof the said parties have 


Iu the passage over; 
See Sir William Scott, 


In gage or pledge. 2 Bi. 


INADEQUATE PRICE 


hereunto set their hands,” ete. A transla- 
tion of the Latin phrase “in cujus ret testi- 
montium.” 


INADEQUATE PRICE. A ferm ap- 
plied to indicate the want of a sufficient con- 
sideration for a thing sold, or such a price as 
would ordinarily be entirely incommensurate 
with its intrinsic value. 


INADMISSIBLE. That which, under 
the established rules of law, cannot be ad- 
mitted or received; e. g., parol evidence to 
contradict a written contract. 


IN MDIFICATIO. Inthecivil law. 
Building on another’s land with one’s own 
materials, or on one’s own land with anoth- 
er’s materials. 


INALIKBNABLE. Notsubject toaliena- 
tion; the characteristic of those things which 
cannot be bought or sold or transferred from 
one person to another, such as rivers and 
public highways, and certain personalrights; 
e. g., liberty. 


INAUGURATION. Tho act of install- 
ing or inducting into office with formal cere- 
monies, as the coronation of a sovereign, the 
inauguration of a president or governar, or 
the consecration of a prelate. 


INBLAURA. In old records. 
product of ground. Cowell. 


Profit or 


INBORH. In Saxon law. A security, 
pledge, or hypotheca, consisting of the chat- 
tels of a person unable to obtain a personal 
“borg,” or surety. 


INBOUND COMMON. An uninclosed 
common, marked out, however, by bounda- 
ries. 


INCAPACITY. Wantofcapacity; want 
of power or ability to take or dispose; want 
of legal ability to act. 


INCASTELLARE. To make a building 
serve asa castle. Jacob. 


INCAUSTUM, or ENCAUSTUM. Ink. 
Fieta, 1. 2, ¢. 27, § 5. 


Incaute factum pro non facto habe- 
tur. <A thing done unwarily (or unadvised- 
ly) will be taken as not dene. Dig. 28, 4, 1. 


INCENDIARY. A house-burner; one 
guilty of arson; one who maliciously and 
willfully sets another person’s building on 
fire. 


610 


INCIDENT 


Incendium wre alieno non exuit deb- 
itorem. Cod. 4, 2, 11. A fire does not 
release a debtor from his debt. 


INCEPTION. Commencement; open- 
ing; initiation. The beginning of the opera- 
tion of a contract or will. 


Incerta pro nullis habentur. Uncer- 
tain things are held for nothing. Dav. it 
K. B. 33. 


Incerta quantitas vitiatactum. 1 Rolie 
R. 465. An uncertain quantity vitiates the 
act. 


INCEST. The crime of sexual inter- 
course or cohabitation between a man and 
woman who are related to each other within 
the degrees wherein marriage is prohibited 
by law. 


INCESTUOUS ADULTERY. The el- 
ements of this offense are that defendant, be- 
ing married to one person, has bad sexual 
intercourse with another related to the de 
fendant within the prohibited degrees. 11 
Ga. 53. 


INCESTUOUS BASTARDY. Incest- 
uous bastards are those who are produced by 
the illegal connection of two persons who 
are relations within the degrees prohibited 
by law. Civil Code La. art. 188. 


INCH. A measure of length, containing 
one-twelfth part of a foot; originally sup- 
posed equal to three barleycorns. 


INCH OF CANDLE. A mode of sale 
at one timein useamong merchants, A no- 
tice is first given upon the exchange, or oth- 
er public place, as to the time of sale. The 
goods to be sold are divided into lots, printed 
papers of which, and the conditions of sale, 
are published. When the sale takes place, a 
small piece of candle, about an inch long, is 
kept burning, and the last bidder, when the 
candle goes out, is entitled to the lot or par- 
cel for which he bids. Wharton. 


INCHARTARE. To give, or grant, and 
assure anything by a written instrument. 


INCHOATE. Imperfect; unfinished; 
begun, but not completed; as a contract not 
executed by all the parties. 


INCHOATE DOWER. A wife’s inter- 
est in the lands of her husband during his 
life, which may become a right of dower up 
on his death. 


INCIDENT. This word, used as anoun, 
denotes anything which Inseparably belonga 


“a court-baron is incident to a manor. 
less strictly, it denotes anything which 
lly connected with another, or con- 
ted for some purposes, though not insep- 
bly, Thus, the right of alienation is inci- 
to an estate in fee-simple, though sepa- 
table in equity. 


INCIDERE. Lat. In the civil and old 
glish law. Tofallinto. Caivin. 
To fall out; to happen; to come to pass. 
Calvin. 

To fall upon or under; to become subject 
orliable to. Incidere in legem, to incur the 
penalty ofalaw. Brissonius. 


INCILE. Lat. In the civil law. A 
trench. A placesunk by the side ofa stream, 
80 called because it is cut (¢zcidalur) into or 
through the stone or earth. Dig. 43, 21, i, 
§. The term sees to have included ditehes 
(fossa) and wells, (puted.) 


INCIPITUR. Lat. It is begun; it be- 
gins. In old practice, when the pleadings 
in an action at law, instead of being recited 
at large on the issue-roll, were set out merely 
hy their commencements, this was described 
8 entering the tzcipitur,; t. ¢., the begin- 
ing. 


INCISED WOUND. In medical juris- 
prudence. A cut or incision on a human 
body; a wound made by a cutting instru- 
ment, such as a razor. Burrill, Circ. Ev. 
693; Whart. & 8. Med. Jur. § 808. 


Il 


INCIVILE. Irregular; improper; out of 
the due course of law. 


Incivile est, nisi tota lege perspecta, 
ana aliqua particula ejus proposita, ju- 
diecare, vel respondere. It is improper, 
without looking at the whole of a law, to 
give judgment or advice, upon a view of any 
one clause of it. Dig. 1, 3, 24. 


Incivile est, nisi tota sententia in- 
specta, de aliqua parte judicare. It is 
irregular, or legally improper, to pass an 
opinion upon any part of a sentence, with- 
out examining the whole, Hob. 171a, 


INCIVISM. Unfriendliness to the state 
or government of which one is a citizen. 


INCLAUSA. In old records. A home 
close or inclosure near the house, Paroch. 
Antig. 31; Cowell. 


INCIDERE 611 INCOMMUNICATION 
ris connected with, or inherent in, an- INCLOSH. To shut up. “To inclose a 
thing, called the “principal.” In this | jury,” in Scotch practice, is to shut them up 


Bell. 


INCLOSED LANDS. Lands which are 
actually inclosed and surrounded with 
fences. 7 Mees. & W. 441. 


INCLOSURE. In Englishlaw. Inclos- 
ure is the act of freeing land from rights of 
common, commonable rights, and generally 
all rights which obstruet cultivation and the 
productive employment of labor on the soil. 

Also, an artificial fence around one’s es- 
tate. 39 Vt. 34, 326; 36 Wis. 42. See CLosx. 


Inclusio unius est exclusio alterius. 
The inclusion of one is the exelusion of an- 
other. The certain designation of one per- 
son id an absolute exclusion of all others. 11 
Coke, 583. 


INCLUSIVE. Embraced; comprehend- 
ed; comprehending the stated limits or ex- 
tremes. Opposed to “exclusive.” 


INCOLA. Lat. Inthe civillaw. An 
inhabitant; a dweller or resident. Properly, 
one who has transferred his domicile to any 
country, 


in a room by themselves. 


Incolas domicilium facit. Residence 
ereates domicile. 1 Johns, Cas. 3638, 366. 


INCOME. The return in money from 
one’s business, labor, or capital invested; 
gains, prolit, or private revenue. 

“Income” means that which comes in or is re 
csived from any business or investment of capital, 
without reference to the outgoing expenditures; 
while “profits” generally means the gain which is 
made upon any business or investment when both 
receipts and payments are taken intoaccount. “In- 
come,” when applied to the affairs of individuals, 
expresses the same idea that “revenue” does when 
applied to the affairs of a state or nation. 4 Hill, 
20; 7 Hill, 504, 


INCOME TAX. A tax on the yearly 
profits arising from property, professions, 
trades, and oflices. 2 Steph. Comm. 573. 


Incommodum non solvit argumentum. 
An inconvenience does not destroy an argu- 
ment. 


INCOMMUNICATION. In Spanish 
law. The condition of a prisoner who is not 
permitted to see or to speak with any person 
visiting bim during his confinement. A per- 
son accused cannot be subjected to this treat- 
ment unless it be expressly ordered by the 
judge, for some grave offense, and it cannot 
be continued for a longer period than is ab- 
soluiely necessary. This precaution is re 
sorted to for the purpose of preventing the 


INCOMPATIBLE 


accused from knowing beforehand the testi- 
mony of the witnesses, or from attempting 
to corrupt them and concert such measures 
as will efface the traces of his guilt. As 
soon, therefore, as the danger of his doing 50 
has ceased, the interdiction ceases likewise. 


Eseriche. Z 


INCOMPATIBLE. Two or more rela- 
tions, orices, functions, or rights which can- 
not naturally, or may not legally, exist in or 
be exercised by the same person at the same 
time, are said to be incompatible. Thus, the 
relations of lessor and lessee of the same land, 
in one person at the same time, are incom- 


patible. So of trustee and beneficiary of the 
Baume property. 
INCOMPETENCY. Lack of ability, 


legal qualification, or fitness to discharge the 
required duty.. 

As applied to evidence, tle word “incom- 
petent” means not proper to be received; in- 
adiuissible, as distinguished from that which 
the court should admit for the consideration 
of the jury, though they may not find it wor- 
thy of credence. 

In French law. Inability or insufficiency 
of a judge to try a cause brought before him, 
proceeding from lack of jurisdiction. 


INCONCLUSIVE. That which may be 
disproved or rebutted; not shutting out fur- 
ther proof or consideration. Applied to evi- 
deuce and presumptions. 


INCONSULTO. Inthecivillaw. Un- 
advisedly; unintentionally. Dig. 28, 4, 1. 


INCONTINENCE. Want of chastity; 
indulgence in unlawful carnal connection. 


INCOPOLITUS. 


Ineorporalia bello non adquiruntur. 
Incorporeal things are nob acquired by war. 
§ Maule & S. 104. 


INCORPORAMUS. We _ incorporate, 
Ore of the words by which a corporation may 
be created in England. 1 BI]. Comm. 473; 
3 Steph. Comm 173. 


INCORPORATE. 1. To create a corpo- 
ration; to confer a corporate franchise upon 
determinate persons. 

2. To declare that another document shall 
be taken as part of the document in whichthe 
declaration is made as much as if it were set 
out at length therein. 


INCORPORATION. 1. The act or pro- 
cess of forming or creating a corporation; the 


A proctor or vicar. 


612 


INCREASE, COSTS OF 


the quality of perpetnal existence and 
cession, unless limited by the act of ineorpo 
ration. 

2. The method of making one documentot 
any Kind become a part of another separ 
document by referring to the former in the 
latter, and declaring that the former shall be 
tuken and considered as a part of the latter 
the same as if it were fully set out therein. 
This is more fully described as “incorpora- 
tion by reference.” If the one document ig 
copied at length in the other, it is called 
“actual incorporation.” 

3. In the civil law. The union of one 
domain to another. 


INCORPOREAL. Without body; notoft 
material nature; the opposite of “corporeal,” 
(q. v) 


INCORPOREBAL CHATTELS. A claag 
of incorporeal rights growing out of or inci- 
dent to things personal, such as patent-rights 
and copyrights. 2 Steph, Comm. 72. 


INCORPOREAL HEREDITAMENT. 
Anything, the subject of property, which is 
inheritable and not tangible or visible. 2 
Woodd. Lect. 4. A right issuing out of a 
thing corporate (whether real or personal) or 
concerning or annexed to or exercisable with- 
in the same. 2 Bl. Comm. 20; 1 Washb. 
Real Prop. 10. 


INCORPOREAL PROPERTY. In the 
civillaw. That which consists in legal riglit 
merely. The same as choses in action at 
common law. 


INCORRIGIBLE ROGUE. A species 
of rague or offender, described in the statutes 
5 Geo. IV. c. 83, and 1 & 2 Vict. c. 38 4 
Steph. Comm. 509. 


INCREASE. (1) The produce of land; 
(2) the offspring of animais. 


INCREASE, AFFIDAVIT OF. Afi- 
davit of payment of increased costs, pro- 
duced on taxation. 


INCREASE, COSTS OF. In English 
law. it was formerly a practice with the 
jury to award to the successful party in an 
action the nominal sum of 4Us. only for his 
costs; and the court assessed by their own 
officer the actual amount of the successful 
party’s costs; and the amount so assessed, 
over and above the nominal sum awarded by 
the jury, was thence called “costs of in- 
crease.” Lush, Cum. Law Pr. 775. The 
practice has now wholly ceased. Rapal. & | 


formation of a iegal or political body, with | Law. | 


INCREMENTUM 


INCREMENTUM. Increaseor im- 
provement, opposed to decrementum or abate- 


INCROACHMENT, An unlawful gain- 
ing upon the right or possession of another. 
See ENCROACHMENT. 


INCULPATE. To impute blame or 
guilt; to accuse; to involve in guilt or 
crime, 


INCULPATORY. In the law of evi- 
dence. Going or tending to establish guilt; 
intended to establish guilt; criminative. 
Burrill, Cire. Ev. 251, 252. 


INCUMBENT. <A person who is in 
| present possession of an office; one who is 
legally authorized to discharge the duties of 
au office. 11 Ohio, 50. 


In ecclesiastical law, the term signifies a 
clergyman who is in possession of a bene- 
fice. 


INCUMBER. To incumber land is to 
make it subject to a charge or liability; e.9., 
by mortgaging it, Incumbrances include 
not only mortgages and other voluntary 
charges, but also liens, ites pendenies, reg- 
istered judgments, and writs of execution, 
bic. Sweet. 


INCUMBRANCEH. Any right to, or in- 
terest in, land which may subsist in third per- 
sons, to the diminution of the value of the es- 
tate of the tenant, but consistently with the 
passing of the fee. & Neb. 8; 2 Greenl. Ey. 
§ 242. 

A claim, lien, or liability attached to prop- 
erly; a8 a mortgage, a registered judgment, 
ete. 


INCUMBRANCER. The holder of an 
Jncumbrance, e. g.,a mortgaye, on the estate 
of another. 


INCUR. Men contract debis; they incur 
liabilities. In the one case, they act aflirma- 
tively; in the other, the liability is incurred 
or cast upon them by act or operation of law. 
“Incur” means something beyond contracts, 
—something not embraced in the word 
“debts.” 15 How. Pr. 48; 5 Abb. Pr. 162, 


INCURRAMENTUM. The liability to 
a fine, penalty, or umercement, Cowell. 


INDE, kat. Thence; thenceforth; 
thereof; thereupon; for that cause, 


Inde date leges ne forticr omnia pos- 
set. Laws are made to preyent the stronger 


613 


INDEFENSUS 


from having the power te do everything. 
Dav. Ir. K. B, 36. 


INDEBITATUS. Lat. Indebted. Nun- 
quam tndebitaius, never indebted. The tille 
of the plea substituted in England for nil 
debvet. 


INDEBITATUS ASSUMPSIT. Lat. 
Being indebted, he promised or undertook. 
This is the name of that form of theaction of 
assumpsit in which the declaration alleges z 
debt or obligation to be due from the defend- 
ant, and then avers that, in consideration 
thereof, he promised to pay or diseharge the 
same, 


INDEBITI SOLUTIO. Lat. 
civil and Scotch law. A payment of what is 
not due. Wien made through ignorance or 
by mistake, the amount paid might be re- 
covered back by an action termed “condictic 
tndebitt.” (Dig. 12, 6.) Bell. 


INDEBITUM. In the civil law. Not 
due or owing. (Dig. 12,6.) Calvin. 


INDESGTEDNESS. The state of being 
in debt, without regard to the ability or ina- 
bility of the party to pay the same. See 1 
Story, Eq. Jur. 343; 2 Hill, Abr. 421. 

The word implies an absolute or complete liabil- 
ity. A contingent liability, such as that of a sure 
ty before the principal has made default, does not 
constitute indebtedness, On the other hand, the 
money need not be immediately payable. Obliga- 
tiens yet to become due constitute indebtedness, 
a5 well as those already due, % Mo. 149, 


INDECENCY. An act against good he- 
havior and a just delicacy. 2 Serg. & R. 91. 

This is scarcely a technical term of the 
law, and is net susceptible of exact definition 
or description in its juridical uses, ‘The ques- 
tion whether or not a given act, publication, 
etec., is indecent is for the court and jury in 
the particular case, 


INDECENT EXPOSURE. Exposure 
to sight of the private parts of the body in a 
lewd or indecent manner in a public place. 
It is an indictable offense at common law, 
and by statute in many of the states. 


In the 


INDECIMABLHE. In old English law. 
That which is not titheable, or liable to pay 
tithe. 2 Inst. 490. 


INDEFBASIBLE. That which cannot 
be defeated, revoked, or made void. This 
term is usually applied to an estate or right 
which cannot be defeated. 


INDEFENSUS. 
tics. 


In ald English prac- 
Undelended; undenied by pleading. 


INDEFINITE FAILURE OF ISSUE 614 


A defendant who makes no defense or plea. 
Blount. 


INDEFINITE FAILURE OF ISSUE. 
A failure of issue not merely at the death of 
the party whose issue are referred to, but at 
any subsequent period, however remote. 1 
Steph. Comm. 562. A failure of issue when- 
ever it shall happen, sooner or later, with- 
out any fixed, certain, or definite period 
within which it must happen. 4 Kent, Comm. 
274. 


INDEFINITE NUMBER. An uncer- 
tain or indeterminate number. A number 
which may be increased or diminished at 
pleasure. 


INDEFINITE PAYMENT. InSecotch 
law. Payment without specification. In- 
definite payment is where a debtor, owing 
several debts to one creditor, makes a pay- 
ment to the creditor, without specifying to 
which of the debts he means the payment to 
be applied. See Bell. 


Iindefinitum equipollet universali. 
The undefined is equivalent to the whole. 
1 Vent. 368. 


Indefinitum supplet locum universa- 
lis. The undefined or general supplies the 
place of the whole. Branch, Princ. 


INDEMNIFICATUS. Lat. 
fied. See INDEMNIFY. 


INDEMNIFY. To save harmless; to 
secure against loss or damage; togive security 
for the reimbursement of a person in case of 
an anticipated loss falling upon him. 

AJso tomake good; to compensate; tomake 
reimbursement to one of a loss already in- 
curred by him. 


INDEMNIS. Lat. Without hurt, harm, 
or damage; harmless. 


Indemni- 


INDEMNITEE. The person who, in 
a contract of indemnity, is to be indemnified 
or protected by the other. 


INDEMNITOR. The person who is 
bound, by an indemnity contract, to indem- 
nify or protect the other. 


INDEMNITY. An indemnity is a col- 
lateral contract or assurance, by which one 
person engages to secure another against an 
anticipated loss, or to prevent him from be- 
ing dampified by the legal consequences of an 
act or forbearance on the part of one of the 
parties or of some third person. See Civil 
Code Cal. § 2772. Thus, insurance is a con- 


INDENT 


tract of indemnity. So an indemnifyin, 
bond is given toa sheriff who fears to pro 
ceed under an execution where the property 
is claimed by a stranger. 

The term is also used to denote a compen- 
sation given to make the person whole from 
a loss already sustained; as where the gov= 
ernment gives indemnity for private proper- 
ty taken by it for public use. 

A legislative act, assuring a general dis- 
pensation trom punishment or exemption 
from prosecution to persons involved in of- 
fenses, omissions of oilicial duty, or acts in 
excess of authority, is called an indemnity; 
strictly it is an act of indemnity. 


INDEMNITY CONTRACT. An 
agreement between two parties, whereby the 
one party, the indemnitor, either agrees to 
indemnify and save harmless the other party, 
the indemnitee, from loss or damage, or binds 
himself to do some particular act or thing, 
or to protect tlie indemnitee against liability 
to, or the claim of, a third party. 10 Amer, 
& Eng. Enc. Law, 402, 


INDEMPNIS. The old form of writing 
tndemnis. LTownsh. Pl. 19. So, indempni- 
Jicatus for indemityicatus. 


INDENIZATION. The act of making 
a denizen, or of naturalizing. 


INDENT, mz. In Americanlaw. <A cer- 
tificate or indented certificate issued by the 
government of the United States at the close 
of the Revolution, for the principal or inter- 
est of the public debt. Webster, 


INDENT, v. To cut in a serrated or 
waving line. In old conveyancing, if a deed 
was made by more parties than one, it was 
usual to make as many copies of it as there 
were parties, and each was cut or indented 
(either in acute angles, like the teeth of a 
saw, or in a waving line) at the top or side, 
to tally or correspond with the others, and 
the deed 80 made was called an “indenture.” 
Anciently, both parts were written on the 
sanie piece of parchment, with some word or 
letters written between them th roughwhich 
the parchment was cut, but afterwards, the 
word or lettcrs being omitted, indenting came 
into use, the idea of which was that the gen- 
uineness of each part might be proved by its 
fitting into the angles cut in the other. But 
at length even this was discontinued, and at 
present the term serves only to give name to 
the species of deed executed by two or more 
parties, as opposed to a deed-poll, (g. 2.) 2 
Bl. Comm. 296. 


INDENT 61 
id by indentures; to apprentice; as 
i @ young man to a shoe-maker. 


NDENTURE. A deed to which two or 
ersons are parties, and in which these 
r into reciprocal and corresponding 
nis oF obligations towards each other; 
reas a deed-poll is properly one in which 
only the party making it executes it, or binds 
himself by it as a deed, though the grantors 
or grantees therein may be several in num- 
ber. 3 Washb. Real Prop. 311. See In- 
DENT, 2. 


INDENTURE OF APPRENTICE- 

‘SHIP. A contract in two parts, by which 

‘& person, generally a minor, is bound to serve 

‘another in his trade, art, or occupation for a 

: stated time, on condition of being instructed 
in the same. 


, INDEPENDENCE. The state or condi- 

tion of being free from dependence, subjec- 

_ tion, or control. Volitical independence is 
the attribute of a nation or state whieh is 
entirely autonomous, and not subject to the 
government, control, or dictation of any ex- 
terior power, 


INDEPENDENT CONTRACT. One 
in which the mutual acts or promises have 
no relation to each other, either as equiva- 
lents or considerations. Civil Code La. art. 
1769; 1 Bouy. Inst. no. 699. 


i INDEPENDENT COVENANTS. 

_ ovenants in an instrument which are inde- 
pendent of each other, or where the perform- 

ance of one, or the right to require its per- 
formance, or to obtain damages for its non- 
performance, does not depend upon the per- 
formance of the other. 


| Independenter se habet assecuratio a 

Viaggio navis. The voyage insured is an 
independent or distinct thing from the voyage 
of the ship. 3 Kent, Comm. 318, note. 


INDETERMINATE. hat which is un- 
certain, or not particularly designated; as if 
Isell you one hundred bushels of wheat, 
without stating what wheat. 1 Bouv. Inst. 
no. 950, 


INDEX, A book containing references, 
alphabetically arranged, to the contents of a 
series or collection of volumes; or an addi- 
tion to asingle volume or set of volumes con- 
taining such references to its contents, 


Index animi sermo. 
exponent of the intention. 


Language is the 
The language of 


5 INDICT 


a statute or Instrument is tho best guide to 
the intention. Broom, Max. 622. 


INDIAN COUNTRY. This term does 
not necessarily import territory owned and 
occupied by Indians, but it means all those 
portions of the United States designated by 
this name in the legislation of congress. 4 
Sawy. 121. 


INDIAN TRIBE. A separate and dis- 
tinct community or body of the aboriginal 
Indian race of men found in the United 
States. 


INDIANS. The aboriginal inhabitante 
of North America. 


INDICARE. Inthecivillaw. Toshow 
or discover. ‘To fix or tell the price of a 
thing. Calvin. To inform against; to ac- 
cuse. 


INDICATIF. An abolished writ by 
which @ prosecution was in some cases re- 
moved from a court-christian to the queen’s 
bench. Enc. Lond. 


INDICATION. In the law of evidence, 
A sign or token; a fact pointing to some in- 
ference or conclusion. Burrill, Cire. Ev. 
251, 252, 263, 27. 


INDICATIVE EVIDENCE. This is 
not evidence properly so cailed, but the mere 
suggestion of evidence proper, which may 
possibly be procured if the suggestion is fol- 
lowed up. Brown. 


INDICAVIT. In English practice. A 
writ of prohibition that lies for a patron of a 
church, whose clerk is sued in the spiritual 
court by the clerk of another patron, for 
tithes amounting to a fourth part of the value 
of ihe living. 3 Bl Comm. 91; 3 Steph, 
Comm. 711. So termed from the emphatie 
word of the Latin form. Reg. Orig. 358, 36. 


INDICIA. Signs; indications. Cireum- 
stances which point to the existence of a given 
fact as probable, but not certain. For ex- 
ample, “indicia of partnership” are any cir- 
cumstances which would induce the beliefthat 
a given person was in reality, though not os- 
tensibly, a member of a given firm. 


INDICIUM. In the civil law. <A sign 
or mark. A species of proof, answering very 
nearly to the circumstantiul evidence of the 
common law. Best, Pres. p. 18, § 11, note; 
Wills, Circ. Ey. 34, 


INDICT. See InpICTMENT. 


INDICTABLE 


INDICTABLE. Proper or necessary to 
be prosecuted by process of indictment. 


INDICTED. Charged in an indictment 
with a criminal offense. See INDICTMENT. 


INDICTEE. A person indicted. 


INDICTIO. In olf public law. A dec- 
laration; a proclamation. IJndictio belli, a 
declaration or indiction of war. An indict- 
ment. 


INDICTION, CYCLE OF. A mode of 
computing time by the space of fifteen years, 
instituted by Constantine the Great; origi- 
nally the period for the payment of certain 
taxes. Some of the charters of King Edgar 
and Henry LII.are dated byindictions. Whar- 
ton. 


INDICTMENT. An indictment is an 
accusation in writing found and presented 
by a grand jury, legally convoked and sworn, 
to the court in which it is impaneled, charging 
that a person therein named has done some 
act, or been guilty of some omission, which, 
by law, is a public offense, punishable on in- 
dictment. Code Iowa 1880, § 4295; Pen. 
Code Cal. § 917; Code Ala, 1386, § 4364. 

A presentment differs from au indictment in that 
it is an accusation made by a grand jury of their 
own motion, either upon their own observation 
and knowledge, or upon evidence before them; 
while an indictment is preferred at the suit of the 
government, and is usually framed in the first in- 
stauce by the prosecuting officer of the government, 
and by him luid before the grand jury, to be found 
orignored, An information resembles in its form 
and substance an indictment, but is filed at the 
mere diseretion of the proper law officer of the gov- 
ernment, without the iutervention or approval of a 
grand jury. 2 Story, Const, §§ 1784, i786. 

In Scotch law. An indictment is the 
form of process by which a criminal is brought 
to trial at the instance of the lord advocate. 
Where a private party is a principal prosecu- 
tor, he brings his charge in what is termed 
the “form of criminal letters.” 


Indictment de felony est contra pacem 
domini regis, coronam et dignitatem 
suam, in genere et non in individuo; quia 
in Angli@ non est interregnum. Jenk. 
Cent. 205. Indictment for felony is against 
the peace of our lord the king, his cruwn and 
dignity in general, and not against his indi- 
vidual person; breause in England tliere is 
no interregnum. 


INDICTOR. He who causes another to 
be indicted. The latter is sometimes called 
the “indictee.” 


616 


controverted fact, but to establish a state of 
facts, or the existence of other facts, from 


| ness to the fact, but by collateral cirecum- 


INDORSEE IN DUE COURSE 


INDIFFERENT. Impartial; unbiased; 
disinterested. 


INDIGENA. In old English law. A 
Subject bor; one born within the realm, or 
naturalized by act of parliament. Co. Litt, 
8a. The opposite of “alienivena,” (g. 0.) 


INDIRECT EVIDENCE. Evidence 
which does not tend directly to prove the 


which it will follow as a logical inference, 
Inferential evidence as to the truth ofa 
disputed fact, not by testimony of any wit- 


Stances ascertained by competent means. | 
Starkie, Ey. 15. 


INDISTANTER. Forthwith; without 
delay, 


INDITEEH, L. Fr. In old English law. 
A person indicted. Mirr. c. 1, § 3; 9 Coke, 
pref. 


INDIVIDUUM. Lat. 
That cannot be divided. 


In the civil law. 
Calvin. 


INDIVISIBLE. Not susceptible of di- 
vision or apportionment; inseparable; en- 
tire. Thus, a contract, covenant, considera- 
tion, etc., may be divisible or indivisible; ¢. e., 
separable or entire. 


INDIVISUM. That which two or more 
persons hold in common without partition; 
undivided. 


INDORSAT. In old Seotch law. In- 
dorsed. 2 Pite. Crim. Tr. 41. 
INDORSE. To write a name on the back 


of a paper or document. Bills of exchange 
and promissory notes are indorsed by a party's 
writing his name on the back. 7 Pick. 117. 

“Indorse” is a technical term, having sufficient 
legal certainty without words of more particular 
description. 7 Vt. 351. 


INDORSEE. The person to whom a bill 
of exchange, promissory note, bill of lading, 
etc., is assigned by indorsement, giving him 
a right to sue thereon. 


INDORSEE IN DUE COURSE. An 
indorses in due course is one who, in good 
faith, in the ordinary course of business, and 
for value, before its apparent maturity or | 
presumptive dishonor, and without know]- | 
edge of its actual dishonor, acquires a nego- | 
tiable instrument duly indorsed to him, or 
indorsed generally, or payable to the bearer. | 
Civil Code Cal. § 3123, | 


INDORSEMENT 


SEMENT. The act of a payce, 
accommodation indorser, or holder 
note, check, or other negotiable in- 
£, in writing his name upon the back 
me, with or without further or qual- 
words, whereby the property in the 
assigned and transferred to another. 
hat which is so written upon the back of 
otiable instrument. 

One who writes his name upon a negotia- 
instrument, olherwise than as a miker or 
ptor, and delivers it, with his name 
reon, to another person, is called an “in- 

I dorser,” and his actis called “indorsement.” 
 Givil Code Gal. § 3108; Civil Code Dak. 
§ 1886. 

An indorsement in full is one in which 
meniion is made of the nameof the indorsee. 
‘ Chit. Bills, 170. 

A blank indorsement is one which dees not 
mention the name of the indorsee, and cen- 
sists, generally, simply of the name cf the 
_ indorser wrilten on the back of the instru- 
ment. 1 Daniel, Neg. Inst. § 693. 

A conditional indorsemeni is one by which 
the indorser annexes some condition (other 
than the failure of prior parties to pay) to his 
liability. The condition may be either pre- 
cedent or subsequent. 1 Daniel, Neg. Inst. 
§ 697. 

A restrictive indorsement is one which is 
80 worded as to restrict the further negotia- 
bility of the instrument, 

A qualified indorsement is one which re- 
strains or limits or qualifies or enlarges the 
liability of the indorser, in any manner differ- 
ent from what the law generally imports as 
his true liability, deducible from the nature 
of the instrument. Chit. Bills, (8th Ed.) 
261; 7 Taunt. 160. ‘ 

In criminal law. An entry made upon 
the back of a writ or warrant. 


INDORSER. He who indorses; i. e., 
being the payee or holder, writes his name 
on the back of a bill of exchange, etc. 


INDUCEMENT. In contracts. The 
benetit or advantage which the promisor is 
to receive from a contract is the inducement 
for making it. 

In criminal evidence. Motive; that 
which leads or tempts to the comunission of, 
crime. Burrill, Circ. Ev. 283. 

in pleading. That portion of a declara- 
tion or ot any subsequent pleading in an ac- 
tion which is brought forward by way of ex- 
planatory introduction te the main allega- 
ticus. Brown. 


617 


INDUSTRIAL, ETC., SOCIETIES 


INDUCIA. In international law. A 
truce; a suspension of hostilities; an agree 
ment during war to abstain fora time from 
warlike ucts. ; 

In old maritime law. A periad of twen- 


ty days after the safe arrival of a vessel un- 
der bottomry, to dispuse of the cargo, and 


raise the money to pay the creditor, with in- 
terest. 

In old English practice. Delay or in- 
dulgence allowed a party to an action; fur- 
ther time to appear in a cause. Bract. fol. 
3526; Fleta, lib. 4, c. 5, § 8. 

In Scotch practice. Time allowed for 
the performance of an act. Time to appear 
toa citation. Time to collect evidence or 
prepare a defense. 


INDUCIA LEGALES. In Sevtch law. 
The days between the cibation of the defend- 
ant and the day of appearance; the days be- 
tween the test day and day of return of the 
writ. 


INDUCTIO. In the civillaw. Obliter- 
ation, by drawing the pen or stylus over the 
writing. Dig. 23,4; Calvino, 


INDUCTION. In _ ecclesiastical law. 
Induction is the ceremony by which an in- 
cumbent who has been instituted to a benefice 
is vested with full possession of all the profits 
belonging to the church, so that he becomes 
seised of the temporalities of the church, and 
is then complete incumbent. Itis performed 
by virtue of a mandate of induction directed 
by the bishop to the archdeacon, who either 
performs it in person, or directs his precept 
to one or more other clergymen to do it. 
Phillim. Eee. Law, 477. 


INDULGENCE. Inthe Roman Catholic 
Church. A remission of the punishment 
due to sins, granted by the pope or church, 
and supposed to save the sinner from purga- 
tory. Its abuse led to the Reformation in 
Germany. Wharton. Forbearance, (gq. v.) 


INDULTO. In ecclesiastical law. A 
dispensation granted by the pope to do or ob- 
tain something contrary to the common law. 

In Spanish law. The eondonation or re- 
mission of the punishment imposed on a 
criminal for his offense. This power is exe 
clusively vested in the king. 


INDUMENT. Endowment, (g. 0.) 


INDUSTRIAL AND PROVIDENT 
SOCIETIES. Socictics formed in Eng- 
land for carrying on any labor, trade, or 
handicraft, whether wholesale or retail, in- 


INDUSTRIAL SCHOOLS 


eluding the buying and selling of land and 
also (but subject to certain restrictions) the 
business of banking. 


INDUSTRIAL SCHOOLS. Schools 
{established by voluntary contribution) in 
which industrial training is provided, and in 
which children are dodged, clothed, and fed, 
as well as taught. 


INDUSTRIAM, PER. Lat. A qualified 
property in animals fera nature may be ac- 
quired per industriam, t. e., by @ Man's re- 
claiming and making them tame by art, indus- 
try, and education; or by so confining them 
within his own immediate power that they 
cannot escape and use their natural liberty. 
2 Steph. Comm. 5. 


INEBRIATE. A person addicted to the 
use of intoxicating liquors; an habitual 
drunkard. 

Any person who habitually, whether continu- 
ously or periodically, indulges in the use of intoxi- 
eating liquors to such an extent as to stupefy his 
mind, and to render him incompetent to transact 
ordinary business with safety to his estate, shall 
be deemed an inebriate, within the meaning of this 
chapter: provided, the habit of so indulging in 
such use shall have been at the time of inquisition 
of at least one year’s standing. Code N, C, 1883, 
§ 1671. 


INELIGIBILITY. Disqualification or 
legal incapacity to be elected to an office. 
Thus, an alien or naturalized citizen is ineli- 


gible to be elected president of the United 
States. 


INELIGIBLE. Disqualified to be elect- 
ed to an office; also disqualified to hold an 
oflice if elected or appointed toit. 28 Wis. 
99. 


Inesse potest donationi, modus, con- 
ditio sive causa; ut modus est; si con- 
ditio; quia causa. In a gift there may be 
manner, condition, and cause; as [wt] in- 
troduces a manner; if, [si,] a condition; be- 
cause, [quia,]acause. Dyer, 138. 


INEST DE JURE. Lat. Itis implied of 
right; it is implied by law. 


INEVITABLE. Incapable of being 
avoided; fortuitous; transcending the pow- 
er of human care, foresight, or exertion to 
avoid or prevent, and therefore suspending 
legal relations so far as to excuse from the 
performance of contract obligations, or from 
liability for consequent loss. 


INEVITABLE ACCIDENT. An In- 
evitable accident is one produced by an irre- 
sistible physical cause; an accident which 


618 


INFAMOUS CRIME 


cannot be prevented by human skill or fore 


sight, but results from natural causes, such 
as lightning or storms, perils of the sea, in- 


or illness, By irresistible force is meant aa 
interposition of human agency, from its nate 
ure and power absolutely uncontrollable. 12 
La. Ann. 427. As used in the civil law, thig 
term is nearly synonymous with “fortuitous 
event.” 

Inevitable accident is where a vessel is pursuing 
a lawful avocation in a lawful manner, using the 
proper precautions against danger, and an acol 
dent occurs. The highest degree of caution that 
can be used is not required. It isenough that it is 
reasonable under the circumstances; such as is 
usual in similar cases, and has been found by long 
experience to be sufficient to auswer the end in 


view,—the safcty of life and property. 7 Wall. 
196. 

Inevitable accident is only when the disaster 
happens from natural causes, without negligence 
or fault on either side, and when both parties have 
endeavored, by every means in their power, with 
due care and caution, and with a proper display of 
nautical skill, te prevent the occurrence of the ae 
cident, 12 Ct. CL 491, 


INEWARDUS. A guard; a watchman. 
Domesday. 


INFALISTATUS. In old English law, 
Exposed upon the sands, or sea-shore. A 
species of punishment mentioned in Heng- 
ham. Cowell, 


INFAMIA, Lat. 
disgrace, 

By infumta juris 1s meant infamy established 
by law as the consequence of crime; infamic fuck 
is where the party is supposed to be guilty of such 
crime, but it bas not been judicially proved. 17 
Mass. 515, 541. 

INFAMIS. Lat, In Roman law. <A per- 
son whose rightof reputation was diminished 
(involving the loss of some of the rights of 
citizenship) either on account of his intamous 
avocation or because of conviction for crime. 
Mackeld. Rom. Law, § 135. 


INFAMOUS CRIME. A crime which 
entails infamy upon one who has committed 
it. See INFAMY. 

The term “infamous”"—4. ¢., without fame or 
good report—was applied at common law to cer 
tain crimes, upon the conviction of which a person 
became incompetent to testify as a witness, upon 
the theory that a person would not commit so hein- 
ous a crime unless he was so depraved as to be un- 
worthy of credit. These crimes are treason, fel- 
ouy, and the crimen jalst. Abbott. 

A crime punishable by imprisonment in 
the state prison or penitentiary, with or 
without hard labor, is an infamous crime, 
within the provision of the fifth amendment 


Infamy; ignominy or 


AMOUS CRIME 


tution that “no parson shall be 
r for a capital or otherwise in- 
me unless on 2 presentment or in- 
of a grand jury.” 117 U.S. 348, 
%, Rep. 777. 


ous, * as used in the fifth amendment to 
ited States constitution, in reference to 
includes those only of the class called 
n filet," which both involve the charge of 
od, aad may also injuriously affect the pub- 
istration of justice by introducing false- 
and fraud. 15 N. B. R. 835. 

the Revised Statutes of New York the term 
ous crime,” when used in any statute, is 
d to be construed as including every offense 
nishabie with déath or by imprisonment in a 
fie-prison, and noother, 2 Rey. St. (p. 702, § 31,) 
1 § 33. 


INFAMY. A qualification of a man’s 
legal status produced by his conviction of an 
famous crime and the consequent loss of 
mor and eredit, which, at common law, 
reniered him incompetent as a witness, and 
by statute in some jurisdictions entails other 
disabilities. 

INFANCY. Minority; the state of a 
person who is under the age of legal majority, 
—at common law, twenty-one years. <Ac- 
cording to the sense in which this term is 
used, if may denote the condition of the per- 
son merely with reference to his years, or 
the contractual disabilities which non-age en- 
tails, or his status with regard to other pow- 
ers or relations. 


INFANGENTHEF. Inold English law. 
A privilege of lords of certain manors to judge 
any thief taken within their fee, 


INFANS. In thecivil law. A child un- 
der the age of seven years; so called “quasi 
impos fandi,” (as not having the faculty of 
speech.) Cod. Theodos. 8, 18, 8. 


Infans non multum a furicso distat. 

An infant does not differ much from a luna- 

| tic. Bract. 1. 3, c. 2,8 8; Dig. 50, 17, 5, 40; 
1Story, Eg. Jur. §§ 223, 224, 242. 


INFANT. A person within age, not of 
age, or not of full age; a person under the 
age of twenty-one years; a minor. Co. Litt. 
1716; 1 Bl. Comm, 463-466; 2 Kent, Comm. 
20d, 


INFANTIA. In the civil law. The pe- 
ried of infancy between birth and the age of 
seven years, Calvin. 


INFANTICIDE. The murder or killing 
of an infant soon after its birth, The fact 
of the birth distinguishes this act from “feeti- 
cide” or “procuring abortion,” which terms 


619 


INFERIOR 


denote the destruction of the fetus in the 
womb, 


INFANTS’ MARRIAGE ACT. The 
statute 18 & 19 Vict. ec. 48. “Gy virtue of 
this act every infant, {if a male, of twenty, or, 
if a female, of seventeen, years,—section 4,) 
upon or in contemplation of marriage, may, 
with the sanction of the chancery division of 
the high court, make a valid settlement or 
contract for a settlement of property. Whar- 
ton, 


INFANZON. In Spanish law. A per- 
son of noble birth, who exercises within hia 
domains and inheritance no other rights and 
privileges than those conceded to him. Es- 
eriche. 


INFEFT. InScotchlaw. To giveseisin 
or possession of lands; to invest or enfeoff. 
1 Kames, Eq. 215. 


INFEFTMENT. In old Scotch law, 
Investiture or infeudation, including both 
charter and seisin. I Forb. Inst. pt. 2, p. 
110. 

In later law. Saisine, or the instrument 
of possession. Bell. 


INFENSARE CURIAM, An expres- 
sion applied to a court when it suggested ta 
an advocate something which he had omitted 
through mistake or ignorance, Spelman. 


INFEOFFMENT. The act or instru- 
mentoffeoflfment. In Scotland it is synony- 
mous with “saisine,” meaning the instru- 
ment of possession. Formerly it was aynon- 
yoous with “investiture.” Bell. 


INFERENCE. In the law of evidence, 
A truth or proposition drawn from another 
which issupposed or admitted to be true. A 
process of reasoning by which a fact or prop- 
osition sought to be established is deduced as 
a logical consequence frum other facts, ora 
state of facts, already proved or admitted. 

An inference is a deduction which the rea- 
son of the jury makes from the facts proved, 
without an express direction of law to that 
effect. Code Civil Proc. Cal. § 1958. 


INFERENTIAL. In the law of eyl- 
dence. Operating in the way of inference; 
argumentative. Presumptive evidence ig 
somelimes termed “inferential.” 4 Pa, St. 
272. 


INFERIOR. One who, in relation to an 
other, has less power and is below him; one 
who is bound to obey another. He who 
makes the law is the superior; he who is 


INFERIOR COURT 


bound to obey it, the inferior. 
no. 8. 


1 Bouv. Inst. 


INFERIOR COURT. This term may 
denote any court subordinate to the chief ap- 
pellate tribunal in the particular judicial sys- 
tem; but it is commonly used as the designa- 
tion of a court of sperial, limited, or stabuto- 
ry jurisdiction, whose record must show the 
existence and attaching of jurisdiction in any 
given case, in order to give presumptive va- 
lidity to its judgment. See Cooley, Const, 
Lim. 508. 

The English courts of judicature are 
classed generally under two heads,—the su- 
perior courts and the inferior courts; the 
former division comprising the courts at 
Westminster, the latter comprising all the 
other courts in general, many of which, how- 
ever, are far from being of inferior impor- 
tance in Lhe common acceptation of the word. 
Brown. 


INFEUDATION. The placing in pos- 
session of a freehold estate; also the granting 
of tithes to laymen. 


INFICIARI. Lat. Inthecivillaw. To 
deny; to deny one’s liability; to refuse to pay 
a debt or restore a pledge; todeny tlie allega- 
tion of a plaintiff; todeny the charge of an 
accuser. Calvin. 


INFICIATIO, Lat. In the civil law. 
Denial; the denial of a debt or liability; the 
denial of the claim or allegation of a party 
plaintiff. Calvin. 


INFIDEL. One who does not believe in 
the existence of a God who will reward or 
punish in this world or that which is to come. 
Willes, 550. One who professes no religion 
that can bind his conscience to speak the 
truth. 1 Greenl. Ev. § 368. 


INFIDELIS. 
An infidel or heathen. 


In feudal law. One who violated fealty. 


In old English law. 


INFIDELITAS. In feudal law. Infi- 
delity; faithlessness to one’s feudal oath. 
Spelman. : 


INFIDUCIARE. 
To pledge property. 


In old European law. 
Spelman. 


INFIHT. Sax. An assault madeon a 
person inhabiting the same dwelling. 


Infinitum in jure reprobatur. That 
which is endless is reprobated in law. 12 
Toke, 24. Applied to liligation. 


620 


INFORMATION, ETC. 


INFIRM. Weak, feeble. The testiuio 
of an “Infirm” witness may be taken 


bene esse in some circumstances. See l P. 
Wms. 117. 


INFIRMATIVE. In the law of evidence, 
Having the quality of diminishing force; 
having a tendency to weaken or render in- 
firm. 3 Benth. Jud. Ey. 14; Best, Pres. § 217. 


INFIRMATIVE CONSIDERATION, 
In the law of evidence. A consideration, 
supposition, or hypothesis of which the erim- 
inative facets of a case admit, and which 
tends to weaken the inferetice or presumption 
of guilt deducible from them. Burrill, Cire, 
Ev. 153-155. 


INFIRMATIVE FACT. In the law of 
evidence. A fact set up, proved, or even 
supposed, in opposition to the criminative 
facts of a case, the tendency of which is to 
weaken the force of the inference of guilt 
deducible from them. 8 Benth. Jud, Ev, 14; 
Best, Pres. § 217, et seq. 


INFIRMATIVE HYPOTHESIS. A 
term sometimes used in criminal evidence to 
denote an hypothesis or theory of the case 
which assumes the defendant’s innocence, and 
explains the criminative evidence in a man- 
ner consistent with that assumption. 


INFORMAL. Deficient in legal form; 
inartificially drawn up. 


INFORMALITY. Want of legal form, 


INFORMATION. In practice. An 
accusation exhibited against a person for 
some criminal offense, without au indict. 
ment. 4 Ll. Comm. 308. 

An accusation in the nature of an indict- 
ment, from which it differs only in being pre- 
sented by a competent public oflicer on his 
oath of oflice, instead of a grand jury on their 
oath. 1 Bish. Crim. Proe. § 141. 

The word is also frequently used in the law 
in its sense of communicated knowledge, and 
affidavits are frequently made, and pleadings 
and other documents verilied, on “informa- 
tion and belief.” . 

In French law. The act or instrument 
which contains the depositions of witnesses 
against the accased. Toth. Proc. Civil, § 2, 
art. 5. 


INFORMATION IN THE NATURE 
OF A QUO WARRANTO. A proceeding 
against the usurper of a franchise or office. 
See Quo WALRANTO. 


ION OF INTRUSION 


TON OF INTRUSION. 
stituted by the state prosecut- 
against intruders upon the public 
Gen. St. Mass. c. 141; 3 Pick. 
igh, 588. 


8 ATUS NON SUM. In prac- 
am not informed. A formal answer 
y the defendant’s attorney in cost to 
that he has not been advised of any 
to beinade tothe action. Thereupon 
nent by default passes. 


NFORMER. A person who informs or 
fers an accusution against another, whom 
e suspects of the violation of some penal 
te. 

¢ommon informer is a person who sues 
a penalty which is given to any person 
sill sue for it, as opposed to a penalty 
hich is only given to a person specially ag- 
yed by the act complained of. 3 Bl. 
mm. 161, 


INFORTIATUM. The name given by 
_ the glossators to the second of the three parts 
or volumes into which the Pandects were 
divided. The glossaturs at Bologna had at 
first only two parts, the first called “ Diges- 
tum Vetus,” (the Old Digest,) and the last 
called “ Digestum Novum,” (the New Digest.) 
When they afterwards received the middle 
or second part, they separated from the Dé- 
gestum Novum the beginning it had then, 
and added it to the second part, from which 
enlargement the latter received the name 
“Infortiatum.” Mackeld. Rom. Law, § 110. 


INFORTUNIUM, HOMICIDE PER. 
Where a man doing a lawful act, without in- 
tention of hurt, unfortunately kills another, 


INFRA. Lat. Below; underneath; with- 
{n. This word occurring by itself in a book 
tefers the reader to a subsequent part of the 
book, like “post.” It is the opposite of 
“ante” and “supra,” (q. v.) 


| INFRA ZETATEM. 


RIM 


Under age; not of 
_ age. Applied to minors. 


t INFRA ANWNOS NUBILES. Under 
i marriageable years; not yet of marriageable 
| sage. 

INFRA ANNUM. Under or within a 
year. Lract. fol. 7. 


INFRA ANNUM LUCTUS. (Within 
the year of mourning.) The phrase is used 
in reference to the marriage of a widow 
within a year after her husband’s death, 
which was prohibited by the civil law. 


621 


INFRA SEX ANNOS 


INFRA BRACHIA. Within her arms. 
Used of a husband dé jure, as well as de 
facto. 2 Inst. 317. Also inter brachia. 
Bract. fol. 1486. It was in this sense that a 
woman could only have an appeal for mur- 
der ot her husband inter brachia sua. 


INFRA CIVITATEM,. Within the state, 
1 Camp. 23, 24. 


INFRA CORPUS COMITATUS. 
Within the body (territorial limits) of a coun- 
ty. In English law, waters which are infra 
corpus comitatus are exempt from the juris- 
diction of the admiralty. 


INFRA DIGNITATEM CURIA. Be- 
neath the dignity of the court; unworthy of 
the consideration of the court. Where a bill 
in equity is brought upon a matter too tri- 
fling to deserve the attention of the court, it 
is demurrable, as being tnfra dignitatem 
CUTIE. 


INFRA FUROREM. During madness; 
while in a state of insanity. Bracb. fol. 195. 


INFRA HOSPITIUM. Within theinn. 
When a traveler’s baggage comes infra hos- 
pitium, i. e., in the care and under the cus- 
tody of the innkeeper, the latter’s Liability 
attaches, 


INFRA JURISDICTIONEM. 
the jurisdiction. 2 Strange, 827, 


INFRA LIGHANTIAM REGIS. 
Within the king's ligeance. Comb, 212. 


INFRA METAS. Within the bounds or 
limits. Infra metas foreste, within the 
bounds of the forest. Fleta, lib. 2, c. 41, 
§ 12. Infra metas hospitti, within the lim- 
its of the household; within the verge. Id. 
libs, es 25S 2. 


INFRA PRASIDIA. Within the pro- 
tection; within the defenses. In interna- 
tional law, when a prize, or other captured 
property, is brought into a port of the cap- 
tors, or within their lines, or otherwise under 
their complete custody, so that the chance of 
rescue is lost, it is said to be infra presidia. 


INFRA QUATUOR MARIA. Within 
the four seas; within the kingdom of Eng- 
land; within the jurisdiction. 

INFRA QUATUOR PARIETES., 
Within four walls. 2 Crabb, Real Prop. p. 
106, § 1089. 


INFRA REGNUM. Within the realm. 


INFRA SEX AWNNOS. Within six 
years. 


Within 


INFRA TRIDUUM 


INFRA TRIDUUM. Within three 
days. Formal words in old appeals. Feta, 
lib. 1, ¢. 31, § 6; Id.¢. 35, § 3. 


INFRACTION. A breach, violation, or 
infringement; as of a law, acontract, aright 
or duty. F 

In French law, this term is used as a gen- 
eral designation of all punishable actions. 


INFRINGEMENT. A breaking into; 
a trespass or encroachment upon; a viola- 
tion of a law, regulation, contract, or right. 
Used especially of invasions of the rights se- 
cured by patents, copyrights, and trade- 
marks. 


INFUGARE. To put to flight. 
INFULA. A coif, or a cassock. Jacob. 


INFUSION. In medical jurisprudence, 
The process of steeping in liquor; an opera- 
tion by which the medicinal qualities of a 
substance may be extracted by a liquor with- 
out boiling. Also the product of this opera- 
tion. “Infusion” and “decoction,” though 
not identical, are ejusdem generis in law. 3 
Camp. 74. See Decocrion. 


INGE. Meadow, or pasture. Jacob. 


INGENIUM. (1) Artifice, trick, fraud; 
(2) an engine, machine, or device. Spelman. 


INGENUITAS, Liberty given toa serv- 
ant by manumission. 


INGENUITAS REGNI. In old En- 
glish law. The freemen, yeomanry, or com- 
monalty of the kingdom. Cowell. Applied 
sometimes also to the barons. 


INGENUUS. In Roman law. A per- 
son who, immediately that he was born, was 
a free person. He was opposed to libertinus, 
or Jibertus, who, having been born a slave, 
was afterwards manumitted or made free. 
It is not the same as the English law term 
“yenerosus,” Which denoted a person not 
merely free, but of good family. There 
were no distinctions among ingenut; but 
among libertiné there were (prior to Justin- 
ian’s abolition of the distinctions) three vari- 
eties, namely: Those of the highest rank, 
called “Cives Romani;” those of the second 
rank, called “Zatint Junieni;” and those 


of the lowest rank, ealled “Dediticii.” 
Brown. 
INGRATITUDE. In Roman law, in- 


gratitude was accounted a sullicient cause 
for revoking a gift or recalling the liberty of 
afreedman. Such is also thelaw of France, 


622 


INHERETRIX 


with respect to the first case. But the En- 
glish law bas left the matter entirely to the 
mora] sense. 


INGRESS, EGRESS, AND RE- 
GRESS. These words express the right of 
a lessee toenter, go upon, and return from the 
lands in question. 


INGRESSU. In English law. An an- 
cient writ of entry, by which the plaintiff or 
complainant sought an entry into his lands. 
Abolished in 1833. 


INGRESSUS. In old English law. In- 
gress; entry. Therelief paid by an heir fo 
the lord was sometimes socalled. Cowell. 


INGROSSATOR. An engrosser, Im 
grossator magni rotwit, engrosser of the 
great roll; afterwards called “elerk of the 
pipe.” Spelman; Cowell. 


INGROSSING. The act of making a 
fair and perfect copy of any document from 
a rough draft of it, in order that it may be 
executed or put to its final purpose. 


INHABITANT. One who resides actu- 
ally and permanently in a given place, and 
has his domicile there. 

“The words ‘inhabitant,’ ‘citizen,’ and ‘ rest- 
dent,’ as employed in different constitutions to de 
fine the qualifications of clectors, mean substan- 
tially the same thing; and one is an inhabitant, 
resident, or citizen at the place where he has his 
domicile or home.” Cooley, Const. Lim. *600. But 
the terms “resident” and “inhabitant” have also 
been held not synonymous, the latter implying a 
more fixed and permanent abode than the former, 
and importing privileges and duties to which a 
mere resident would not be subject. 40 IIL 197, 


INHABITED HOUSE DUTY. A tax 
assessed in England on inhabited dwelling- 
houses, according to their annual value, 
(St. 14 & 15 Viet, c. 36; 32 & 33 Vict. c. 14, 
§ 11,) which is payable by the occupier, the 
landlord being deemed the occupier where 
the house is let to several persons, (St. 48 
Geo, IIL. ¢, 55, Schedule B.) Houser occu- 
pied solely for business purposes are exempt 
from duty, although a care-taker may dwell 

herein, and houses partially oceupied for 
business purposes are to that extent exempt. 
Sweet. 


INHERENT POWER. An authority | 
| possessed without its being derived from an- 
other. A right, ability, or faculty of doing 
a thing, without receiving that right, ability, 
or faculty from another. 


re 


INHERETRIX. Theold term for “heir- 
ess.” Co. Lilt. 13a. 


INHERIT 


T. To take by inheritance; to 
r on the death of theancestor. “To 
a person is a common expression 
cs. 3 Coke, 41; 2 Bl. Comm. 254, 


ERITABLE BLOOD. Blood whiel: 
rity (freedom from attainder) and 
necessary to give its possessor the 
r of a lawful heir; that which is 
of being the medium for the trans- 
n of an inheritance. 


HERITANCE. An estate in things 
, descending to the heir. 2 Bl. Comm. 


ich an estate in lands or tenements or 
things as may be inherited by the heir. 
mes de la Ley. 
n estate or property which a man has by 
cent, as heir to another, or which he may 
smit to another, as his heir. Litt. § 9. 
perpetuity in lands or tenements to a 
man and his heirs. Cowell; Blount. 
“Inheritance” is also used in the old books 
re “hereditament” is now commonly em- 
‘ed. Thus, Coke divides inheritances in- 
eorporeal and incorporeal, into real, per- 
sonal, and mixed, and into entire and sev- 
In the civil law. The succession of the 
‘to all the rights and property of the es- 
leaver. It is either testamentary, where 
he heir is created by will, or ab intestato, 
era it arises merely by operation of law. 
Teinec. § 484. 


INHERITANCE ACT. The Engtish 
ftalute of 3 & 4 Wm. LY. c. 106, by which 
the law of inheritance or descent has been 
considerably modified. 1 Steph. Comm. 35), 


(500, 


INHIBITION. In ecclesiastical law. 
A writ issuing from a superior ecclesiastical 
court, forbidding an inferior judge to pro- 
ceed further in a cause pending before him. 
In this sense it is closely analogous to the 
writ of prohibition at common law. 

Also the comman: of a bishop or eeclesias- 
tics] judge that a clergyman shall cease from 
taking any duty, 

In Scotch law. A species of diligence 
or process by which a debtor is prohibited 
from contracting any debt which may become 
a burden on his heritable property, in com- 
petition with the creditor at whose instance 

the inhibition is taken out; and from grant- 
ing any deed of alienation, ete., ta the prej- 
udice of the creditor. Grande, 


623 


INITIATE 


In the civil law. <A prohibition which 
the law makes or a judge ordains to an indi- 
vidual. Hallifax, Civil Law, p. 126. 


INHIBITION AGAINST A WIFE. 
In Scotch law. A writ in the sovereign’s 
name, passing the signet, which prohibits all 
and sundry from having transactions with a 
wife or giving her credit, Bell; Ersk. Inst. 
I, 6, 26. 


INHOC. In old records. <A nook or cor- 
ner of a common or fallow field, inclosed and 
cultivated. Kennett, Par. Antigq. 297, 293; 
Cowell. 


INHIONESTUS. In old English law. 
Unseemly; not in due order. Fleta, lib. 1, 
c. 31, § 8. 


Iniquissima pax est anteponenda jus- 
tissimo bello. The most unjust peace is 
to be preferred tothe justest war. 18 Wend. 
257, 305. 


INIQUITY. In Scotch practice. A tech- 
nical expression applied to the decision of an 
inferior judge who has decided contrary te 
law; he is said to have committed iniquity. 
Bell. 


Iniguum est alios permittere, alios in- 
hibere mercaturam. It is inequitable to 
permit some to trade and to prohibit others. 
3 Inst. 181. 


Iniquum est aliquem rei sui esse ju- 
dicem. It is wrong for a man to bea judge 
in his own cause. Branch, Prine.; 12 Coke, 
118. 

Iniquum est ingenuis hominibus non 
esse liberam rerum suarum alienationem, 
It is unjust that freemen should not have 
the tree disposal of their own property. Co. 
Litt. 223a; Hob. 87; 4 Kent, Comm, 131. 


INITIAL. That which begins or stands 
atthe beginning. The first letter of a man’s 
name. 


INITIALIA TESTIMONII In Scotch 
law. Preliminaries of testimony. The pre- 
liminary examination of a witness, before 
examining him in chief, answering to the 
votr dire of the English law, though taking 
a somewhat widerrange. Wharton. 


INITEATE. Commenced: inchoate 
Curtesy tiritiate is the interest which a hus 
band has in the wife's lands after a child is 
born who may inherit, but before the wife 
diea, 


INITIATIVE 


INITIATIVE. In French law. The 
name given tothe important prerogative con- 
ferred by the echarte constitutionnelle, article 
16, on the late king to propose through his 
ministers projects of laws. 1 Toullier, no. 39. 


INJUNCTION. A prohibitive writ is- 
sued by a court of equity, at the suit of a 
party complainant, directed to a party de- 
fendant in the action, or to a party made a 
defendant for that purpose, forbidding the 
latter to do some act, or to permit his servants 
or agents todo some act, which he is threat- 
ening or attempting to comunit, or restrain- 
ing him in the coutinuance thereof, such act 
being unjust and inequitable, injurious to 
the plaintiff, and not such as can be ade- 
quately redressed by an action at law. 

An injunction is a writ or order requiring 
a person to refrain from a particularact. It 
may be granted by the court in which the ac- 
tion is brought, or by a judge thereof, and 
when made by a judge it may be enforced as 
an order of the court. Code Civil Proc. Cal. 
§ 525. 

Mandatory injunctions command defendant to 
do a particular thing. Preventive, command him 
to refrain from an act. 

An injunction is called “preliminary” or “pro- 
visional,” or an “injuaction pendente lite,” when 
itis granted at the outset of a suit brought for the 
purpose of restraining the defendant from doing 
the act threatened, until the suit has been heard 
and the rights of the parties determined. It is 
called “final” or “perpetual” when granted upon 
a hearing and adjudication of the rights in ques- 
tion, and as a measure of permanent relief, 


INJURIA. Injury; wrong; the priva- 
tion or violation of right. 3 Bl. Comm. 2. 


INJURIA ABSQUE DAMNO. Injury 
or wrong without damage. A wrong done, 
but from which no loss or damage results, 
and which, therefore, will not sustain an 
action. 


Injuria fit el cui convicium dictum 
est, vel de eo factum carmen famostim, 
An injury is done to him of whom areproach- 
ful thing is said, or concerning whom an in- 
famous song is made. 9 Coke, 60. 


injuria illata judici, seu locum tenenti 
regis, videtur ipsi regi illata maxime si 
fiat in exercentem officium. 3 Inst. 1. 
An injury offered to a judge, or person rep- 
resenting the king, is considered as offered 
to the king himseif, especially if it be done 
in the exercise of his office. 


One 
Broom, 


Injuria non excusat injuriam. 
wrong does not justily another. 
Max. 895. See 6 Hi. & Bl. 47. 


624 INLAND BILL OF EXCHANGE 


Injuria non presumitur. Injuryts not 
presumed. Co, Litt.232, Cruel, oppressi 
or tortuous conduct will not be presumed, 
Best. Ev. p. 336, § 298. 


Injuria propria non cadet in benefi- 
cium facientis. One’s own wrong shall 
not fall to the advantage of bim that does it, 
A man will not be allowed to derive benilt 
from his own wrongful act. Branch, Pring 


Injuria servi dominum pertingit. The 
master is liable for injury done by his serve 
ant. Lofft, 229. 


INJURICUS WORDS. In Louisiana, 
Slander, or libelous words. Civil Code La, 
art. 3501. 


INJURY. Any wrong or damage done 
to another, either in his person, rights, reps 
tation, or property. 

In the civil law. A delict committed in 
contempt or outrage of any one, whereby his 
body, his dignity, or his reputation is ma 
liciously injured. Voet, Com. ad Pand. 47, 
t. 10, no. 1, 


Injustum est, nisi tota lege inspecta, 
de una aliqua ejus particula proposita 
judiecare vel respondere. 8 Coke, 117b, 
It is unjust to decile or respond as to any 
particular part of a law without examining 
the whole of the law. 


INLAGARE. In old English law, To 
restore to protection of law. ‘Te restore a 
man from the condition of outlawry. Op. 
posed to wtlagare. Bract. lib. u, tr. 2, ¢. 14, 
§ 1; Du Cange, 


INLAGATION. 
tection of law. 
of outlawry. 


INLAGH. A person within the law’s 
protection; contrary to utlagh, an outlaw. 
Cowell. 


INLAND. Within a country, state, or 
territory; within the same country. 

In old English law, inland was used for 
the demesne (g. v.) of a manor; that part 
which lay next or most convenient for the 
lord’s mansion-house, as within the view 
thereof, and which, therefore, he kept in his 
own hands for support of his family and for 
hospitalily; in distinction from outland or 
uiland, which was the portion let out to ten- 
ants. Cowell; Kennett; Spelman. 


Restoration to the pro- 
Restoration from a condition 


INLAND BILL OF EXCHANGE A 
bill of which both the drawer and draweere- 
side within the same state or country. Oth- 


“foreign bill.” 


AVIGATION. Within the 
the legislation of congress upon 
this plirase means navigation 
3 of the country, but not upon 
lakes. 24 How. 1; 6 Biss. 364. 


ND TRADE. Trade wholly car- 
home; as distinguished from com- 
‘hich see.) 


ANTAL, INLANTALE, Demesne 
opposed to delanta/, or land ten- 
well. 


UGH. Sax. In old English law. 
the law, (swbd dege,) in a frank-pledge, 
pnnary. Bract. fol. 1256. 


AW. To place under the protection 
law. “Swearing obedience to the king 
leet, which doth inlaw the subject.” 


LEASED. Inold English law. En- 
,or ensuared, 2 Inst. 247; Cowell; 


NLIGARE. In old European law, To 
federate; to join in a league, (i ligam 
é.) Spelman. 


MATE. A person who lodges or dwells 
ithe same house with another, occupying 
arent rvoms, but using the same door for 
sing in and out of the house. Webster; 


INN. An inn is a house wherea traveler 
urnished with everything which he has 
sion for while on his way. 3 Barn. & 
‘Ald. 283. See 5 Sandf. 242; 35 Conn. 183. 

Under the term “inn” the law includes all 

taverns, hotels, and houses of public general 
entertainment for guests. Code Ga. 1882, 
8 alld. 


| The words “inn,” “tavern, ” and “hotel” are used 

| synonymously to designate what is ordinarily and 
popularly known as an “inn” or “tavern, ” or place 
lor the entertainment of travelers, and where all 
their wants can be supplied. A restaurant where 
meals only are furnished is not an inn or tavern. 
64 Barb, 311; 1 Hilt. 193. 

An inn is distinguished from a private bourd- 
ing-house mainly in this: that the keeper of the 
latter ig at liberty to choose his guests, while the 
innkeeper is obliged to entertain and furnish all 
travelers of good conduct and means of paymevt 
with what they may have occasion for, as such 
travelers, while on their way. 33 Cal. 557. 

The distinction between a boarding-house and an 
| inn is that in the former the guest is under an ex- 
press contract for a certain time at a certain rate; 
in the latter the guest is entertained from day to 


gay upon an implied contract. 2H, D. Smith, 148, 
AM.DICT.LAW—40 


. 


ot 
NAVIGATION 625 INNOMINATE 
domestic bill,” and distin- INNAMIUM. A pledge. 


INNAVIGABILITY. Iminsurance law, 
Tie condition of being innavigable, (q. v.) 
The foreign writers distinguish “innaviga- 
bility” from “shipwreck.” 8 Kent, Comm. 
323, and note. The term is also applied to 
the condition of streams which ure not large 
enough or deep enough, or are otherwise un- 
suited, for navigation. 


INNAVIGABLE. Asapplied to streams, 
not capable of or suitable for navigation; im- 
passable by ships or vessels, 

As applied to vessels in the law of marine 
insurance, it means unit for navigation; so 
damaged by misadventures at sen us to be no 
longer capable of making a\\.~ ge. See 3 
Kent, Comm. 823, note. 


INNER BARRISTER. A serjeant or 
queen’s counsel, in England, who is admitted 
to plead within the bar. 


INNER HOUSE. The namegiven to 
the chambers in which the first and second 
divisions of the court of session in Scotland 
hold their sittings. See Ourer House. 


INNINGS. In old records. Lands re- 
covered from the sea by draining and banke 
ing. Cowell. 


INNKEEPER. One who keeps an inn 
or house for the lodging and entertainmen 
of travelers. The keeper of a common inn 
for the lodging and entertainment of travel- 
ers and passengers, their horses and attend- 
ants, for a reasonable compensation, Story, 
Dailm. § 475. One who keeps a tavern or 
coffee-house in which lodging is provided. 
2 Sleph. Comm. 133. 

One who receives as guests all who choose ta 
visit his house, without any previous agreement aa 
to the time of their stay, or the terms. His lia 
bility as innkeeper ceases when his guest pays hia 
bill, and leaves the house with the declared intcn- 


tion of not returning, notwithstanding the guest 
leaves his baggaye behind him. 5 Sandf. 243. 


INNOCENCE. The absence of guilt. 
The law presumes in favor of innocence. 


INNCCENT CONVEYANCES. A 
technical term of the English law of convey- 
ancing, used to designate such conveyances 
as may be made bya leaschold tenant without 
working a forfeiture. These are said to ba 
lease und re-lease, bargain and sale, and, in 
ease of a life-tenant, a covenant to stand 
seised. See 1 Chit. Pr. 243, 


INNOMINATE. In thecivillaw. Not 
named or classed; belonging to no specific 
class; ranking under a general head. A 


INNOMINATE CONTRACTS 


term applied to those contracfs for which no | Middle Temple, Lincoln’s Inn, and G 
certain or precise remedy was appointed, but Ina, (Tle two former originally belon 


a general action on the case only. Dig. 2, 1, 
4,7, 2; Id. 19, 4, 6. 


INNOMINATH CONTRACTS, literal- 
ly, are the “unclassified” contracts of Ro- 
man law. They are contracts which are 
neither ve, verbis, literis, nor conscnsté 
simply, but some mixture of or variation 
upon two or more of such contracts. They 
are principally the contraets of permutatio, 
de astimato, precarium, and transactio. 
Brown. 


INWONTA. Inold Englishlaw. A close 
or inclosure, (elausum, inelausura.) Spel- 
man. 


INNOTESCIMUS. Lat. Wemake 
known. A term formerly applied to-letters 
patent, derived from the emphatic word at 
the conclusion of the Latin forms. It was 
a species of exemplification of charters of 
teoffment or other instruments not of record, 
5 Coke, 54a, 


INNOVATION. In Scotch law. The 
exchange of one obligation for another, so as 
to make the second obligation come in the 
place of the first, and be the only subsisting 
obligation against the debtor, Beli. The 
same with “novation,” (q. v.) 


INNOXIARE. Inold English law. To 
purge one of a fault and make him innocent. 


INNS OF CHANCERY. So called be- 
cause anciently inhabited by such clerks as 
chiefly studied the framing of writs, which 
regularly belonged to the cursitors, who 
were officers of the court of chancery. There 
are nine of them,—Clement’s, Clifford’s, and 
Lyon’s Inn; Furnival's, Thavies, and Sy- 
mond’s Inn; New Inn; and Barnard’s and 
Staples’ Inn. These were formerly prepara- 
tory colleges for students, and many entered 
them before they were admitted into the inns 
of court. They consist chiefly of solicitors, 
and possess corporate property, hall, cham- 
bers, ete., but perform no public functions 
like the inns of court. Wharton. 


INNS OF COURT. These are certain 
private unincorporated associations, in the 
nature of collegiate houses, located in Lon- 
don, and invested with the exclusive privi- 
lege of calling men toe the bar; that is, con- 
ferring the rank or degree of a barrister, 
They were founded probably about the be- 
ginning of tho fourteenth contury. The 
principal inns of court are the Inner Temple, 


626 


INOFFICIOUS TESTAMENT 


to the Knights Templar; the two latter 
the earls of Lincoln and Gray respectivel 
These bodies now have a “common counci 
legal education,” for giving lectures and hold. 
ing examinations. The inns of chancery, 
distinguishable from the foregoing, but gen- 
erally classed with them under the general 
name, are the buildings known as “Clifford's 
Inn,” “Clement’s lon,” “New Inn,” “Sta 
ples’ Inn,” and “Barnard’s Inn.” They were 
formerly a sort of collegiate houses in which 
law students learned the elements of law be 
fore being admitted into the inns of court, 
but they have tong ceased to occupy that po- 
sition. 


INNUENDO, This Latin word (com- 
monly translated “meaning”) was the tech- 
nical beginning of that clause in a declaration 
or indictment for slander or libel in which 
the application of the language charged to 
the plaintiff was pointed out. Henceit gave — 
its name to the whole clause; and this usage — 
is still retained, although an equivalent En- 
giish word is now substituted. Thus, it may 
be charged that the defendant said “he (mean- 
tng the said plaintiff) is a perjarer.” 

The word is also used,({though more rarely,) 
in other species of pleadings, to introduce an 
explanation of a preceding word, charge, or 
averment, 

It is suid to mean no more than the words 
“id est,” “seilicet,” or “meaning,” or “afore- 
said,” as explanatory of a subject-matter 
suiliciently expressed before; as “sucha one, 
meaning the defendant,” or “such a subject, 
meaning the subject in question.” Cowp, 
683. It is only explanatory of some matter 
already expressed. It serves to point out 
where there is precedent matter, but never 
for a new charge. Ib may epply what is 
already cupressed, but eannot add to or en- 
large or change the sense of the previous 
words. 1 Chit. Pl. 422. 


INOFFICIOSUM. In the civil law. 
Tnoficious; contrary to natural duty or affec- 
tion. Used of a will of a parent which dis- 
inherited a child without just cause, or that 
of a child which disinherited a parent, and 
which could be contested by guerela inofict- 
ost testamenti. Dig. 2, 5, 38, 138; Paulus, 
lib. 4, fit. 5, § 1. é 


INOFFICIOUS TESTAMENT. A will 
not in accordanca with the testator’s natural 
affection and moral duties, Williams, Ex’rs, 
(7th Ed.) 38. 


DAD. In Spanish law. 
» contrary to a duty or obli- 
as well as in opposition to 
affection dictated by nature. 


CONSILII. Lat. Destitute of 

hout legal counsel. A term ap- 
i@ acls or condition of one aeting 
advice, as a testator drafting 


INATUS. An intestate. 


Y and OUTPENY. Inold En- 
A customary payment of a penny 
ng into and going out of a tenancy, 
u de tenura, el pro inyressu.) Spel- 


JEST. 1. A body of men appointed 
to inquire into certain watters. The 
ry is sometimes calied the “grand 
p 
The judicial inquiry made by a jury 
honed for the purpose is called an “in- 
The finding of such men, upon an 
ation, is also called an “inquest.” 
‘The inquiry by a coroner, termed a 
oner’s inquest,” into the manner of the 
of any one who bus been slain, or has 
denly or in prison. 
This name is also given to a species of 
ding under the New York practice, al- 
ble where the defendant in a civil action 
not filed an affidavit of merits nor verified 
his answer. In such case tho issue may be 
taken up, ont of its regular order, on plain- 
*smotion, and tried without the admission 
any affirmative defense. 
An inquest is trial of an issue of fact where 
plaintiff alone introduces testimony. The de- 
nt is entitied to appear at the taking of the 
inquest, and to cross-examine the plaintiff's wit- 
nesses; and, if he do appear, the inquest must be 
‘taken before a jury, unless a jury bo expressly 
apeived by him. 6 How. Pr. 118. 


INQUEST OF OFFICE. In English 
practice. An inquiry made by the king’s (or 
queen’s) officer, his sheriff, coroner, or es- 
cheator, virtute officii, or by writ sent to them 
for that purpose, or by commissioners spe- 
cially appointed, concerning any matter that 
entities the king to the possession of lands or 
tenements, goods or chattels; a8 to inquire 
whether the king’s tenant for life died seised, 
whereby the reversion accrues to the king; 
whether A., who held immediately of the 
erown, died withaut heir, in which case the 
lands belong to the king by escheat; whether 
B. be attainted of treason, whereby hia estate 


1“ 


627 


INQUISITOR 


is forfeited to the crown; whether C., whe 
has purchased land, be an nlien, which is an- 
other cause of forfeiture, ete. 3 Bl. Comm. 
258. These inquests of office were more fre- 
quent in practice during the continuance of 
the military tenures than at present; and 
were devised by law as an authentic means 
to give the king his right by solemn matter 
Gt record. Id. 258, 259; 4 Steph. Comm. 40, 
41. Sometimes simply termed “office,” as in 
the phrase “otlice found,” (g. v.) See? Cranch, 
603. 


INQUILINUS. In Romantaw. A ten- 
ant; one who hires and occupies another’s 
house; but particularly, a tenant of a hired 
house in a city, as distinguished from colo 
nus, the hirer of a house or estate in the coun- 
try. Calvin. 


INQUIRENDO. An authority given to 
some official person to institute an inquiry 
concerning the crown’s interests, 


INQUIRY. The writ of inquiry is a ju- 
dicial process addressed to the sheriff of the 
county in which the venue is laid, stating 
the former proceedings in the action, and, 
“because it is unknown what damages the 
plaintiff has sustained,” commanding the 
sheriff that, by the oath of twelve men of his 
county, he diligently inquire into the same, 
and return the inquisition into court. This 
writ is necessary after an interlocutory judg- 
ment, the defendant having let judgment go 
by default, to ascertain the guantum of dam- 
ages. Wharton. 


INQUISITIO. Inold English law. An 
inquisition or inquest. Jngwisiiio posé mor 
tem, an inquisition after death. An inquest 
of office held, during the continuance of the 
military tenures, upon the death of every one 
of the king’s tenants, to inquire of what lands 
he died seised, whe was his heir, and of what 
age, in order to entitle the king to his mar- 
riage, Wardship, relief, primer seisin, or other 
advantages, as the circumstances of tlie case 
might turn out. 3 Bl. Comm. 258. Inqui- 
sitio patric, the inquisition of the country; 


; the ordinary jury, as distinguished from the 


grand assise. Bract. fol. 15. 


INQUISITION. In practice. An in- 
quiry or inquest; particularly, an investiga- 
tion of certain facts made by a sheriff, to 
gether with a jury impaneled by him for the 
purpose. 


INQUISITOR. A designation of sheriffs, 
coroners super visum corporis, and the like, 


INROLL 


who have power to inquire into certain mat- 
ters. f 


INROLL. A form of “enroll,” used in 
the oldbooks. 3 Rep. Ch. 63, 73; 3 East, 410. 


INROLLMENT, See ENROLLMENT. 


INSANE. Unsound in mind; of unsound 
mind; deranged, disordered, or diseased in 
mind. Violently deranged; mad. 


INSANITY. A manifestation of disease 
of the brain, characterized by a general or 
partial derangement of one or nore faculties 
of the mind, and in which, while conscicus- 
ness igs not abolished, mental freedom is per- 
verted, weakened, or destroyed. Ham. Ner- 
vous System, 332. 

Tho prolonged departure, without any adequate 
eause, from the states of feelizg and modes of 
thinking usual to the individual in health. Bou- 
vier. 

This is not, strictly speaking, a legal term, but 
it is commonly used to denote that state of mind 
which prevents a person from knowing right from 
wrong, aud, therefore, from being responsible for 
acts which in a sane person would be criminal. 
Pope, Lun. 8, 10, 356. 

By insunity is not meant a total deprivation of 
reason, but only an inability, from defect of per- 
ception, memory, and judgment, to do the act ia 
question. So, by & lucid interval is not meant a 
perfect restoration to reason, but a restoration so 
far as to be able, beyond doubt, to comprehend and 
todo the act with such reason, memory, and judg- 
nent as to make it a legal act. 2 Del. Ch, 263. 


Insanus est qui, abjecta ratione, omnia 
cum impetu et furore facit. Heisinsane 
who, reason being thrown away, does every- 
thing with violence and rage. 4 Coke, 128. 


INSCRIBERE. Lat. In the civil law. 
To subseribe an accusation. To bind one’s 
self, in case of failure to prove an accusation, 
to suifer the same punishment which the ac- 
cused would have suffered had he been proved 
guilty, Calvin. 


INSCRIPTIO. Lat. Inthecivillaw. A 
written accusation in which the accuser un- 
dertakes tosuffer the punishment appropriate 
to the offense charged, if the accused is able 
to clear himself of the accusation. Calvin.; 
Cod..9, 1, 10; Id. 9, 2, 16, 7. 


INSCRIPTION. Im evidence. Any- 
thing written or engraved upon a metallic or 
atlier solid substance, intended for great du- 
rabilily; as upon a tombstone, pillar, tablet, 
medal, ring, etc. 


INSCRIPTIONES. The name given by 
the old English law te any written instru- 
ment by which anything was granted. 
Blount, 


628 


INSINUATION 


INSENSIBLE. In pleading. Unintel 
ligible; without sense or meahing, from 
omission of material words, etc. Steph. Ph 
377, 


INSETENA. In old records. An in 
ditch; an interior ditch; one maile within 
another, for greater security. Spelman, 


INSIDIATORES VIABRUM. Lat, 
Highwaymen; persons who lie in wait in 
order to commit some feiony or other iis 
demeanor. 


INSIGNIA, Ensivnsorarmms; distinctive 
marks; badges; indicia; characteristivs. 


INSILIARIUS. Anevil counsellor, 
Cowell. 


INSILIUM, Evil advice or counsel. 
Cowell. 


INSIMUL. Lat. 
Townsh. Pl. 44. 


INSIMUL COMPUTASSENT. They 
accounted together. The name of the count 
in assumpsit upon an account stated; it be- 
ing averred that the parties had settled their 
accounts tugetiier, and defendant engaged to 
pay plaintiff the balance. 


INSIMUL TENUIT. One species of 
the writ of formedon brought against a 
stranger by a coparcener on the possession of 
the ancestor, ete. Jacob. 


INSINUACION. In Spanish law. The 
presentation of a public document to a com. 
petent judge, in order to obtain his approbas 
tion and sanction of the same, and thereby 
give it judicial authenticity. LEseriche. 


INSINUARE. Lat. In the civil law. 
To put into; to deposit a writing in court, 
answering nearly to the modern expression 
“to file.” Sé non mandatum actis insin- 
uatum est, if the power or authority be not 
deposited among the records of the court, 
Inst. 4, 11, 3. 

To declare or acknowlede before a judicial 
ollicer; to give an act an official form. 


INSINUVATIO. Lat. In old English 
law. Information or suggestion. 2x iusin- 
| watione, on the information, Reg. Jud. 
25, 50. 


INSINUATION. In the civil law. The 
transcription of an act on the public registers, 
like our recording of deeds. It was not nec- 
essary in any other alienation but that ap- 
propriated to the purpuse of donation. Inst. 


Together; joinily, 


2, 7, ae 


ION OF A WILL. In thie 
first production of a will, or 
¢ it with the registrar, in order to 
Cowell; Blount. 


VENCY. Thecondition of a per- 
| is insolvent; inability to pay one’s 
lack of means to pay one’s debts. 
8 relative condition of a man’s assets 
abilities that the former, if all made 
ately available, would not be sufficient 
ge the latter. Or the condition of 
on who is unable to pay his debts as 
fall due, or in the usual course of trade 
usiness. Sea 2 Kent, Comm. 389; 4 
652; 15 N. Y. 141, 200; 3 Gray, 600; 2 
Comm. 162. 
to the distinction between bankruptcy 
insolvency, see BANKRUPTOY. 


SOLVENCY FUND. In English 
A fund, consisting of moneys and se- 
curities, which, at the time of the passing of 
a bankruptey act, 1861, stood, in the Bank 
of England, to the credit of the commission- 
of the insolvent debtors’ court, and was, 
by the twenty-sixth section of that act, di- 
rected to be carried by the bank to the account 

of the accountant in bankruptey. Provision 
has new been made for its transfer to the 
commissioners for the reduction of the na- 
tional debt. Robs, Bankr. 20, 56, 


INSOLVENT, One who cannct or does 
not pay; one who is unable to pay his debts; 
one who is not solvent; one who has not 
means or property suflicient to pay his debts. 

A debtor is “insolvent,” within the meaning of 
the banxrupt act, when heis unable to pay his 
debts and meet his engagements in the ordinary 
course of business, as persons in trade usually do, 
3 Ben. 133; Id. 520; 1 Abb. (U. S.) 440; 1 Dill. 186. 

A trador is insolvent when be is notin a condi- 
tion to meet his engagements or pay his debts in 
the usual and ordinary course of business. His 
| solvency or insolveney does not depend upon the 
silipie question whether his assets at the date al- 

leged will or will not satisfy all the demands 
83 Cal. G25, 

INSOLVENT LAW. A termapplied to 
a law, usually of one of the states, regulating 
the settlement of insolvent estates, and ac- 
cording a certain measure of relief to insoly- 
ent debtors. 


| INSPECTATOR. A prosecutor or adver- 
sary. 


INSPECTION. The examination or 
testing of food, fluids, or other articles made 
subject by law to such examination, to as- 
sertain their fitness for use or commerce. 

Also the examination by a private person 


against him, due and to become due. 


629 


INSTALLMENTS 


of public records and documents; or of the 
books and papers of his opponent in an ac- 
tion, for the purpose of better preparing his 
own case for trial. 


INSPECTION LAWS. Laws authoriz- 
ing and direeting the inspection and exami- 
nation of various kinds of nerchandise intend- 
ed for sale, especially food, with a view to 
ascertaining ifs fitness for use, and excluding 
unwholesome or wnmarketable goods from 
sale, and directing the appointment of of- 
ficial inspectors for that purpose. See Const. 
U.S. art. 1, § 10, cl. 2; Story, Const. § 1017, 
et seq. 


INSPECTION OF DOCUMENTS. 
This phrase refers to the right of a party, in 
a civil aclion, to inspect and make copies of 
documents which are essential or material to 
the maintenance of his cause, and which are 
eithes in the cnstody of an officer of the law 
or in the possession of the adverse party. 


INSPECTION, TRIAL BY. A mode 
of trial formerly in use in England, by which 
the judges of a court decided a point in dis- 
pute, upon the testimony of their own senses, 
without the intervention of a jury. This 
took place in cases where the fact upon which 
issue was taken must, from its nature, be evi- 
dent to the court from ocular demonstration, 
or other irrefragable proof; and was adopted 
for the greater expedition of a cause. 3 Bi. 
Comm. 331. 


INSPECTORS. Officers whose duty it 
is to examine the quality of certain articles 
of merchandise, food, weights und measures, 
ele. 


INSPECTORSHIP, DEED OF. In 
English law. An instrument entered into 
between an insolvent debtor and his eredit- 
ors, appointing one or more persons te in- 
spect and oversee the winding up of such in- 
solvent’s affairs on behalf of the creditors, 


INSPEXIMUS. Lat. In old English 
law. We have inspected. An exemplilica- 
tion of letters patent, so called from the em- 
phatie word of the old forms. 5 Coke, 538, 


INSTALLATION. The ceremony of in- 
ducting or investing with any charge, office, 
or rank, as the placing a bishop into his see, 
adean or prebendary into his stall or seat, 
or a knight inte his order. Wharton. 


INSTALLMENTS. Different portions 
of the same debt payable at different succes- 
sive periods as agreed. Brown. 


INSTANCE 


INSTANCE. In pleading and prac- 
tice. Solicitation, properly of an earnest or 
urgent kind. An act is often said to be 
done at a party’s “special imstanee and re- 
quest.” 

In the civil and French law. A gen- 
eral term, designating all sorts of actions and 
judicial demands. Dig. 44, 7, 58. 

In ecclesiastical law. Causes of in- 
stance are those procveded in at the solicita- 
tion of some party, as opposed to causes of 
office, which run in the name of the judge. 
Hallifax, Civil Law, p. 156. 

In Scotch law, That which may be in- 
sisted on at one diet or course of probation. 
Wharton. 


INSTANCE COURT. In English law. 
That division or department of the court of 
admiralty which exercises all the orcinary 
adiniralty jurisdiction, with the single ex- 
ception of prize cases, the latter belonging to 
the branch called the “Prize Court.” 

The term is sometimes used in American law 
for purposes of explanation, but has no proper ap- 
plication to admiralty courts in the United States, 
whero the powers of both instance and prize courts 
are conferred without any distinction. 3 Dall. 6; 
1 Gall. 568; 8 Kent, Comm. 355, 378. 


INSTANCIA. InSpanishlaw. Thein- 
stitution and prosecution of a suit from its 
commencement until definitive judgment, 
The first instance, “primera instancia,” isthe 
prosecution of the suit before the juwige com- 
petent to take cognizance of it at its incep- 
tion; the second instance, “secunda insian- 
cia,” is the exercise of the same action be- 
fore the court of appellate jurisdiction; and 
the third instance, “tercera instanciau,” is 
the prosecution of the same suit, elther by an 
application of revision before the appellate 
tribunal that has already decided the cause, 
or before some higher tribunal, having juris- 
diction of thesume. Lscriche. 


INSTANTER. Immediately; instantly; 
forthwith; without delay. Trial instanter 
was had where a prisoner between attainder 
and execution pleaded that he was not the 
same who was attainted. 

When a party is ordered to plead instanter, 
he must plead the same day. The term is 
usually understood to mean within twenty- 
four hours. 


INSTAR. Lat. Likeness; the likeness, 
pize, or equivalent of a thing. IJnstar den- 
tium, like teeth. 2 Bl. Comm. 295. Jnstar 
omnium, equivalent or tantamount to all. 
Id. 146; 3 BL Comm. 231. 


6380 


INSTITUTES OF JUSTINIAN 


INSTAURUM. In old English di 
A stock or store of cattle, and other 
the whole stock upon a farm, ineluding 
fle, wagons, plows, and all other implen 
of husbandry. 1 Mon. Angi. 5486; F 
lib. 2, c, 72, 8 7. Terra instaurata, la 
Teady stocked. 


INSTIGATION. Incitation; urging; « 
licitation. The act by which one incites at 
other to do something, as to commit sot 
crime or to commence a suit, 


INSTIRPARE. To plant or establish 


INSTITOR. Lat. In the civil law. | 
clerk in a store; an agent. - 


INSTITORIA ACTIO. Lat. In th 
civillaw. The name of an action given 
those who had contracted with an insti 
(gq. v.) to compel the principal to perfornianee, 
Inst, 4, 7, 2; Dig. 14, 3,1; Story, Ag. § 426, 


INSTITORIAL POWER. The charge 
given to a clerk to manage a shop or stor, 
1 Bell, Comm. 506, 507. 


INSTITUTE, v. To inaugurate or com. 
mence; as to institute an action, 
To nominate, constitute, or appoint; ag to 
institute an heir by testament. Dig. 28, 5, 
65. 


INSTITUTE, 2. In the civil law. 
person named in the will as heir, but with 
direction that he shall pass over the estate to 
another designated person, called the “substi 
tute.” 

In Seotch law, The person to whom an 
estate is first given by destination or limila- 
tion; the others, or the heirs of tailzie, are 
called “substitutes.” 


INSTITUTES. A name sometimes gly- 
en to text-books containing the elementary 
principles of jurisprudence, arranged in an 
orderly and systeinalic manner. For ex- 
ample, the Institutes of Justinian, of Gaius, 
of Lord Coke. 


INSTITUTES OF GAIUS. An ele 
mentary work of the Roman jurist Gains; 
important a3 haying formed the foundation 
of the Institutes of Justinian, (g.v.) These 
Institutes were discovered by Niebuhr in 
1816, in a codex rescriptus of the library of 
the cathedral chapter at Verona, and were 
first published at Berlin in 1820. Two edi- 
tions have since appeared. Mackeld. Rom. 
Law, § 54. 


INSTITUTES OF JUSTINIAN. One 
of the four component parts or principal di- 


1 


J 


OF LORD COKE 


pus Juris Civilis, being 
treatise on the Roman law, in 
This work was compiled from 
rees, (resting principally on the In- 
of Gaius,) by a commission composed 
nian and two others, by command 
tion of the emperor Justinian, 
rst published November 21, A. D. 


ITUTES OF LORD COKE. The 
y of four volumes by Lord Coke, pub- 
‘A. D. 1628. The first is an extensive 
nt upon a treatise on tenures, com- 
ed by Littleton, a judge of the common 
temp, Edward TV. This comment is 
mine of valuable common-law learn- 
eollected and heaped together from the 
t reports and Year Books, but greatly 
ve in method. It is usuaily cited by 
tame of “Co. Litt.,” or as “1 Inst.” 
secon’ volume is a comment upon old 
of parliament, without systematic order; 
@ third a more methodical treatise on the 
of the crown; and the fourth an account 
the several species of courts. These are 
as 2,5, or 4 “Inst.,” without any au- 
rsname. Wharton. 


5 INSTITUTIO HMZEREDIS. Lat. In Ro- 
manlaw, Theappointment of theAresin the 
ll. Jt corresponds very nearly to the nom- 
tion of an executor in English law. With- 
such an appointment the will was void 
atlaw, but the pretor (7. e., equity) would, 
‘under certain circumstances, carry out the 
intentions of the testator. Brown. 


INSTITUTION. ‘Thecommencement or 
inauguration of anything. The first estab- 
lishment of a law, rule, rite, ete. Any cus- 
tom, system, organization, etc., firmly estab- 
lished. An elementary rule or principle. 

In practice. The commencement of an 
action or prosecution; as, A. b. has institut- 
ed a suit against C. D. to recover damages 
for trespass. 

In political law. A Iaw, rite, or cere- 
| mony enjoined by authority as a permanent 

rule of conduct orof government. Webster. 

A system or body of usages, laws, or regu- 
lations, of extensive and reeurring operation, 
containing within itself an organism by which 
| j it effects its own independent action, contin- 

uance, and generally its own further devel- 
opment. Its object is to generate, effect, 
regulate, or sanction a succession of acts, 
transactions, or productions of a peculiar 
kind or class. Weare likewise in the habit 
of calling single laws or usages “institu- 


631 


INSTRUMENT 


tions,” if their operation is of vital impor- 
tance and vast scope, and if their continuance 
is in a high degree independent of any inter- 
fering power. Lieb. Civil Lib. 300, 

In corporation law. An organization or 
foundation, for the exercise of some publi¢ 
purpose or function; as an asylum or a uni- 
versity. By the term “institution” in this 
sense is to be understood an establishment or 
organization which is permanent in its nat- 
ure, as distinguished from an enterprise or 
undertaking which is transient and tempo- 
rary. 29 Ohio St. 206; 24 Ind. 391. 

In ecclesiastical law. A kind of invest- 

ture of the spiritual purt of the benefice, as 
induction is of the temporal; for by institu- 
tion the care of the souls of the parish is 
committied tothe chargeoftheclerk. Brown, 

In the civil law. The designation by a 
testator of a person to be his heir. 

In jurisprudence. The plural form of 
this word (“institutions”) is sometimes used 
as the equivalent of “institutes,” to denote 
an elementary text-book of the law. 


INSTITUTIONES. Works containing 
the elements of any science; institutions or 
institutes. One of Justinian’s principal law 
collections, and a similar work of the Roman 
jurist Gaius, are so entitled, See Insv1- 
TUTES. 


INSTRUCT. To convey information as 
aclient to an attorney, or as an attorney to 
a counsel; to authorize one to appear as ad- 
voeate; to give a case in charge to the jury. 


INSTRUCTION. In french criminal 
law. ‘The first process of a criminal prosecu- 
tion. It includes the examination of the ac 
cused, the preliminary interrogation of wit- 
nesses, collateral investigations, the gather- 
ing of evidence, the reduction of the whole to 
order, and the preparation of a document con- 
taining a detailed statement of the case, to 
serve us a brief for the prosecuting officers, 
and to furnish material for the indictment. 


INSTRUCTIONS. In common law. 
Orders given by a principal to his agent in 
relation to the business of his agency. 

In practice. <A detailed statement of the 
facts and circumstances constituting a cause 
of action made bya client to his attorney for 
the purpose of enabling the latter to draw a 
proper declaration or procure it to be done by 
a pleader. 


INSTRUMENT. A written document; 
a formal or legal document in writing, such 
as a contract, deed, will, bond, or lease, 


INSTRUMENT 


In the law of evidence. Anything which 
may be presented as evidence to Lhe senses of 
the adjudicating tribunal. Theterm “instru- 
ments of evidence” includes not merely docu- 
ments, but witnesses and living things which 
may be presented for inspection. 1 Whart. 
Ev. § 615. 


INSTRUMENT OF APPEAL. The 
document by which an appeal is brought in 
an l’nglish matrimonial catise from the presi- 
dent of the probate, divorcee, and admiralty 
division to the fullcourt, It is analogous to 
a pelition. Browne, Div. 322. 


INSTRUMENT OF EVIDENCE. In- 
struments of evidence are the media through 
which the evidence of facts, either disputed 
or required to be proved, is conveyed to the 
mind of a judicial tribunal; and they com- 
prise persons, as well as writings. Best, Ev. 
§ 123. 


INSTRUMENT OF SAISINE. .Anin- 
strument in Scotland by which the delivery 
of “saisine” (t.e., seisin, or the feudal posses- 
sion of Jand} is attested. It is subscribed by 
a notary, in the presence of witnesses, and 
is executed in pursuance of a “precept of 
saisine,” whereby the “grantor of the deed” 
desires “any notary public to whom these 
presents may be presented” to give saisine to 
the intended grantee or grantees. Jt must 
be entered and recorded in the registers of 
daisines:s Mozley & Whitley. 


INSTRUMENTA. That kind of evidence 
which consists of writings not under seal; as 
court-rolls, accounts, and the like. 8 Co. 
Litt. 487. 


INSUCKEN MULTURES. A quantity 
of corn paid by those who are thirled toa mill. 
See 'THIRLAGE. 


INSUFFICIENCY. in equity pleading. 
The legal inadequacy of an answer in equity 
which does not fully and specifically reply to 
some one or more of the material allegations, 
churges, or interrogatories set forth in the 
bill. 


INSULA. An island; a house not con- 
nected with other houses, but separated by 
a surrounding space of wround. Calvin. 


INSUPER. Moreover; over and above. 
An old exchequer term, applied to a charge 
made wpov a person in his account. Blount, 


INSURABLE INTEREST. Such areal 
and substantial interest in specific property 
as will sustain a contract to indemnify the 


632 


INSURANCE COMPANY © 


person interested against its loss. If the 
sured had no real interest, the contract 
be a mere wager policy. 

Every interest in property, or any 
lation thereto, or liability in respect the 
of, of such a nature that a contemplated | 
might directly damnify the insured, is a 
surable interest. Civil Code Cal, § 2546, 


INSURANCE. A contract whereby, 
a stipulated consideration, one party un 
takes to compensate the other for loss on 
specified subject by specified perils. T 
party agreeing to make the compensation i 
usually called the “insurer” or “under. 
writer;” the other, the “insured” or “ag 
sured ;” the agreed consideration, the “pretii- 
um;” the written contract, a “poliey;” the 
events insured against, “risks” or “perils;” 
and the subject, right, or interest to be pra 
tected, the “insurableinterest.” 1 Phil. Ing, 
§§ 1-5. 

Insurance is a contract whereby one un 
dertakes to indemnify another against loss, 
damage, or liability arising from an unknown 
or contingent event. Civil Code Cal. § 2527; 
Civil Code Dak. § 1474. 

Various classes or kinds of insurance are in use. 
Mitrine insurance applies to vessels, cargoes, and 
property exposed to maritime risks. Fire insur 
ance covers buildings, merchandise, and other 
property on land exposed to injury by fire. Life 
insurance means the engagement to pay a stip 
lated sum upon the death of the insured, or of a 
third person in whose life the insured has on in 
terest, either whenever it occurs, or in case it 00 
curs within a prescribed term, Accident and 
healih insurance include insurances of persons 
against injury from accident, or expense and loss | 
of time from disease. Many other forms might 
exist, and several others have been to a limited 
extent introduced in recent times; such as iusur- 
ance of valuables against theft, insurance of the 
lives and good condition of domestic animals, in- 
surance of valuable plate-glasa windows against 
breakage. Abbott | 


INSURANCE AGENT. <Anagentem- | 
ployed by an insurance company to solicic ] 
risks and effect insurances. 


Agents of insurance companies are called “gen- 
eral agents” when clothed with the geueral over- 
sight of the companies’ business in a state or large 
section of country, and “local agents” when their 
functions are limited and confined to some partio- 
ular locality. - ( 


INSURANCE BROKER. A broker 
through whose agency insurances are effect 
ed. 3 Kent, Comm. 260. See Broker. 


INSURANCE COMPANY. A corpo 
ration or association whose business is to 
make contracts of insurance. They are 
either mutual companies or stock companies. 


RANCE POLICY 


NCE POLICY. See Portcy. 


tg. To engage to indemnify a per- 
at pecuniary loss from specified 
To act as an insurer. 


SURED. The person who obtains in- 
on his property, or upon whose life 
ifsurance is effected. 


SURER. The underwriter or insur- 
company with whom a coutract of in- 
eis made, 

‘The person who undertakes to indemnify 
bier by a contract of insurance is called 
ie “insurer,” and the person indemnified is 
edthe “insured.” Civil Code Cai. § 2508. 


INSURGENT, One whe participates in 
an insurrection; one who opposes the execu- 
tion of law by force of arms, or who rises in 
“revolt against the constituted authorities. 
A distinction is often taken betwecu “insurgent” 
and “rebel,” in this: that the former term is not 
necessarily to be tuken in a bad seuse, inasmuch 
aS an insurrection, though extralegal, may be just 
and timely in itself; as where it is undertaken for 
the overthrow of tyranny or the reform of gross 
guuses, According to Webster, an insurrection 
is an incipient or early stage of a rebeliion. 


INSURRECTION. A rebellion, or ris- 
ing of citizens or subjects in resistance to 
their government. See InsuRGENT. 

Insurrection shall consist in any combined 
resistance to the lawful authority of the state, 
with intent to the denial thereof, when the 
same is manifested, or inteniled to be mani- 
fested, by acts of violence. Code Ga. 1882, 
§ 4315. 

INTAKERS. In old English law. A 
kind of thieves inhabiting Kedesdule, on the 
extreme northern border of Hngland; so 
called because they fook in or received such 
booties of cattle and other things as Lheir ac- 

cowplices, who were called “outparters,” 
brought in to them (rom the bardérs of Scot- 
land. 


l INTAKES. Temporary inclosures made 
by customary tenants of a manor under a 
special Guslom authorizing them io inelose 
part of the waste until one or more creps 
have been raised on it. Elton, Common, 277. 


INTEGER. Whole; untouched. es 
tniegra means a question which is new and 
undecided. 2 Kent, Comm. 177. 


INTEMPERANCH. Habitual intem- 
perance is that degree of intemperance from 
the use of intoxicating drinks which dis- 
qualifies the person a great portion of the 
time from properly attending to business, or 


Spelman; Cowell. 


635 


INTENTIO 


which would reasonably inflict a course of 
great menial anguish upon an innocent party. 
Civil Code Cal. § 106. 


INTEND. To design, resolve, purpose, 
To apply a rule of law in the nature of pre- 
sumption; to discern and follaw the proba- 
bilities of like cases. 


INTENDANT. One who has the charge, 
management, or direction of some ollice, de 
partment, or public business. 


INTENDED TO BE RECORDED. 
This phrase is frequently used in conveyances, 
when reciting soe other conveyance which 
has not yet been recorded, but which forms 
alink in the chain of tithe. In Pennsylva- 
nia, it has been construed to be a covenant, 
on the part ef the grantor, to procure the 
deed to be recorded in a reasonable time. 2 
Rawle, 14. 


INTENDENTE. In &panishlaw. The 
immediate agent of the minister of tlhance, 
or the chief and principal director of the dif- 
ferent branches of the revenue, appointed in 
the various departments in each of the proy- — 
inces into which the Spanish monarchy is di- 
vided. Escriche. ' 


INTENDMENT OF LAW. The true 
meaning, the correct understanding ur inten- 
tion of the law; a presumption or inference 
niade by the courts. Co. Litt. 78. 


INTENT. In eriminal law and the law 
of evidence, Purpose; formuiated design; a 
resolve to do or forbear a particular act; 
aim; determinution. In its literal sense, the 
stretching of the mind or will towards a par- 
ticular object. 

“Intent” expresses mental action ab its 
most advanced point, or as it actually ac- 
companies an outward, corporal act which 
has been determined on. Intent shows the 
presence of wld in the act which consum- 
mates acrime. It is the exercise of intelli- 
gent will, the mind being fully aware of the 
nature and consequences of the act which is 
about to be done, and with such knowledge, 
and with full liberty of action, willing and 
electing todo it. Burrill, Circ. Ey. 284, and 
notes. 


INTENTIO. Lat. In the civil law. 
The formal complaint or claim of a plaintiff 
before the praetor. 

In old English law. A count or Jecla- 
ration in a real action, (murrativ.) Bract. 
lib. 4, tr. 2, «. 2; Fleta, lib. 4, « 7; Du 
Cunge. 


INTENTIO 


A blind or obscure 
2 Bulst. 179. 


Intentio ceca mala. 
meaning Is bad or ineffectual. 
Said of a testator’s intention. 


Intentio inservire debet legibus, non 
leges intentioni. The intention [of a par- 
ty] ought to be subservient to for in accord- 
ance with] the laws, not‘the laws to the inten- 
fion. Co. Litt. dida, 3145. 


intentio mo2 imponit nomen operi 
meo. Hob. 128. My intent gives a name to 
my act, 


INTENTION. Meaning; will; purpose; 
design, “The intention of the testator. to 
be collected trom the whole will, is lo gov- 
ern, provided it be not unlawful or inconsist- 
ent with the rules of law.” 4 Kent, Comin. 
534. 

“intention,” when used with reference to the 


construction of wills and other documents, means 
the sense and meaning of it, as gathered fram the 


words used therein. Parol evidence is not ordi- | 


narily admissible to expluin this. When used 
with reference to civil and criminal responsibility, 
a person who contemplates any result, as not un- 
likely to follow from a deliberate act of his own, 
may be said to intend that result, whether he 
desire it or not. Thus, if a man should, for a 
wager, discharge a gun among a multitude of peo- 
ple, 2ad any should be killed, he would be deemed 
guilty of intending the death of auch person; for 
every man is presumed to intend the nuturul con- 
sequence of his own actions. intention is often 
confounded with motive, as when we speak ofa 
man’s “good intentions.” Mozley & Whitley. 


INTENTIONE, A writ that lay against 
him who entered into lands after the death 
of a tenant in dower, or for life, ete., and 
held out to him in reversion or remainder. 
Fitzh. Nat. Brev. 203. 4 
Lat. between. 


INTER. Among; 


INTER ALIA. Among other things. 
A term anciently used in pleading, especially 
in reciling statutes, where the whole stalute 
was not set forth at length. Inter alia 
enactatum fuit, among other things it was 
enacted, See Plowd. 65. 


Inter alias causas acquisitionis, mag- 
na, cclebris, et famosa est causa dona- 
tionis. Among other methods of aequiring 
property, a great, much-used, and celebrated 
method is that of gift. Bract. fol. 11. 


INTER ALIOS. Between other per- 
sons; between those who are strangers toa 
matter in question, 


INTER APICES JORIS. Among the 
subtleties of the law. See APEX JURIG, 


654 


INTER VIVOS 


INTER BRACHIA. Between herart 
Fleta, lib. 1, c. 35, §§ 1, 2 


INTER CAHTEROS. Among other 
ina general clause; not by name, (no 
tim.) A term applied in the civil 
clauses of disinteritance in a will, 
eS, st LG ney Lower 


INTER CANEM ET LUPUM. {( 
Between the dog and the wolf.) Thet 
light; because then the dog seeks hia rest 
and the wolf his prey. 3 Inst. 63. 


INTER CONJUGES. Between hus. 
band and wife. 


INTER CONJUNCTAS PERSONAS, 
Between conjunet persons. By the act 162] 
ce. 18, all conveyances or alienations between 
conjunet persons, unloss granted for oner 
ous causes, are doclared, as in a question 
with creditors, to be null aud of no ayail. 
Conjunct persons are those standing in a 
certain degree of relationship to each other; 
such, for example, as brothers, sisters, sons, 
uneles, etc. These were formerly excluded 
as witnesses, on account of their relation 
ship; but this, as a ground of exclusion, lag 
been abolished. Tray. Lat, Max. 


INTHR PARTEHS. Between parties, 
Instruments in which two persons unite, 
each making conveyance to, or engagement 
with, the other, are called “papers inter 
partes.” 


INTER QUATUOR PARIETES. Be 
tween four wails. Fleta, lib. 6, c. 55, § 4 


INTER REGALIA. In English law, 
Among the things belonging to the sove 
eign. Among these are rights of salmon 
fishing, mines of gold and silver, forests, for- 
feitures, casualties of superiority, ete., which 
are called “vegalia minora,” and may be 
conveyed to a subject. The reyalia majora 
include the several branches of the royal pre 
rogative, which are inseparable from the per- 
son of the sovereign. Tray. Lat. Max. 


INTER RUSTICOS. sie the illit- 
erate or unlearned. 


INTER SE, INTER SESE. Among 
themselves. Story, Partn. § 405. 


INTER VIRUM ET UXOREM. 
tween husband and wife. 


INTER VIVOS. Between the living; 
from one living person to another. Where 
property passes by conveyances, the transac. 
tion is said to be inter vivos, to distinguish 
it from a case of succession or devise. So 


Inst. 2 


Be 


ry gift from one person to another 
ia “gift inter vivos,” to distinguish 
} @ donation made in contemplation 
th, (mortis causa.) 


‘TERCALARE. Inthe civil law. 
roiiuce or insert among or between 
rs; to introduce a day or month into 
calendar; to intercalate. Dig. 50, 16, 


ERCEDERE. Inthecivillaw. To 


INTERCHANGEABLY. By way of 
exchange or interchange. ‘This term prop- 
denotes the method of signing deeds, 
Jeuses, contracts, etc., executed in duplicate, 
where each party signs the copy which he 
delivers to the other. 


INTERCOMMON. To enjoya common 
mutually or promiscuously with the inhab- 
_itunts or tenants of a contiguous township, 
Vill, or manor. 2 Bl. Comm. 33; 1 Crabb, 
Real Prop. p. 271, § 290. 


INTERCOMMONING. When thecom- 
mons of two adjacent manors join, and the 
inhabitants of both have immemorially fed 
their cattle promiscuously on each other’s 
common, this is called “intercommoning.” 
‘Termes de la Ley. 


INTERCOMMUNING. Letters of in- 
tercommuning were letters from the Scotch 
privy council passing (on their act) in the 
king’s name, charging the Neges not to reset, 
supply, or intercommune with the persons 
thereby denounced; or to furnish them with 
meat, drink, house, harbor, or any other thing 
useful or comfortable; or to have any inter- 
ii course with them whatever,—under pain of 
being reputed art and part in their crimes, 
and dealt with accordingly; and desiring all 
sheriffs, bailies, ete., to apprehend and com- 
mit such rebels to prison. ell. 


INTERCOURSE. Communication; lit- 
erally, a running or passing between persons 
or places; commerce. 


INTERDICT. In Roman law. A de- 
cree of the preetor by means of whieh, in cer- 
fain cases determined by the edict, he himself 
directly commanded what should be done or 
omitted, particularly in causes involving the 
right of possession or a guasi possession. In 
the modern civil law, interdicts are regarded 
precisely the same as actions, though they give 
rise to @ summary proceeding. Mackeld. 
Rom. Law, § 258. 

Interdiets are either prohibitory, reatora- 


635 


INTERDUM EVENIT, ETC. 


tive, or exhibitory; the first being a prohibl- 
tion, the second a decree for restoring pos- 
session lost by force, the third a decree for 
the exhibiting of accounts, ete. Heinec, 
§ 1206. 

An interdict was distinguished from an “action,” 
(aectio,) properly so cxlled, by the circumstance 
that the prastor himself decided in the first in- 
stance, (prineipaliter,) ou the application of the 
plaintiff, without previously appointing a judex, 
by issuing a decree commanding what should be 
dane, or left undone. Galus, 4, 189. It might ba 
adopted as a remedy in various cases where a reg- 
ular action could not be maintained, and hence in- 
terdicts were at one time more extensively used 
by the prector than the actiones themselves, Aft 
erwards, however, tliey fell into disuse, and in the 
time of Justiniap were generally dispensed with. 
Mackeld. Rom. Law, § 258; Inst. 4, 15, 8, 


In ecclesiastical law. An ecclesiastical 
censure, by which divine services are pro- 
hibited to be administered either to particular 
persons or in particular places. 

In Scoteh law. An order of the court 
of session or of an inferior court, pronounced, 
on cause shown, for stopping any act or pro- 
ceedings complained of as illegal or wrong- 
ful. It may be resorted to as a remedy against 
any encroachment either on property or pos- 
session, and is a protection against any un- 
lawful proceeding. Bell, 


INTERDICTION. In French law. 
Every person who, on account of insanity, 
has become incapable of controlling his own 
interests, can be put under the control of a 
guardian, who shall administer his affairs 
with the same effect as he might himself. 
Such a person is said to be “interdit,” and 
his status is deseriled as “interdiction.” Arg, 
Fr. Mere. Law, 562. 

In the civil law. A judicial decree, by 
which a person is deprived of the exercise of 
his civil rights. 


INTERDICTION OF FIRE AND 
WATER. Banishment by an order that no 
man should supply the person banished with 
fire or water, the two necessaries of life. 


INTERDICTUM SALVIANUM. Lat. 
In Roman law. The Salvian interdict. A 
process which lay for the owner of a farm to 
obtain possession of the goods of his tenant 
who had pledged them to him for the rent of 
the land. Inst. 4, 15, 3. 


Tnterdum evenit ut exceptio qua 
prima facie justa videtur, tamen inique 
noceat. Jt sometimes happens that a plea 
which seems prima facie just, nevertheless ig 
injurious and unequal. Inst. 4, 14, 1, 2. 


INTERESSE 6 
INTBERESSE. Lat. Interest. The in- | 


terest of money; also an interest in lands. 


INTERESSE TERMINI. An interest 
in aterm. That species of interest or prop- 
erty which a lessee for years acquires in the 
lands demised to him, before he las actually 
become possessed of those lands; as distin- 
guished from that property or interest vested 
in him by the demise, and aiso reduced into 
possession by an actual entry upon the lands 
and the assumption of ownership therein, 
und which is then termed an “estate for 
years.” Brown. 


INTEREST. In property. The most 
general term that can be employed to denote 
# property in lands or chattels. In its appli- 
cation to Jands or things real, it is frequently 
used in connection with the terms “estate,” 
“right,” and “title,” and, according to Lord 
Coke, it properly includes themall. Co. Litt, 
3456. 

More particularly it means a right to have 
the advantage accruing from anything; any 
right in the nature of property, but Jess than 
title; a partial or undivided right; a title to 
a share. 

The terms “interest” and “title” are not synony- 
mous. A mortgagorin possession, and a purchuser 
holding under a deed defectively executed, have, 
both of them, absolute as well as insurable inter- 
ests in the property, though neither of them has 
the legal title. 29 Conn. 20. 

In the law of evidence. “Interest,” in 
a statute that no witness shill be excluded by 
interest in the event of the snit, means “con- 
cern,” “advantage,” “good,” “share, “ por- 
tion,” “part,” or “participation.” i1 Barb. 
471; 11 Mete. (Mass.) 390. 

A relation to the matter in controversy, or 
to the issue of the suit, in the nature of a 
prospective gain or loss, which actually does, 
or presumably might, create a bias or preju- 
diea in the mind, inclining the person to 
favor one side or the other. 

For money. Interest is the compensation 
allowed hy law or fixed by the parties for the 
use or forbearance or detention of money. 
Civil Code Cal. § 1915. 

Legal interest is the rate of interest estab- 
lished by the law of the country, and which 
will prevail in the absence of express stipula- 
tion; conventional interest is a certain rate 
agreed upon by the parties. 2 Cal. 563. 

Simpie interest is that which is paid for 
the principal or sum lent, at a certain rate or 
allowance, made by law or agreement of par- 
ties. Compound interest is interest upon 
interest, where accrued interest is added to 


i 
ed 


6 INTEREST REIPUBLICA, ETC. 

the principal sum, and the whole treated as 
a new principal, for the calculation of the in- 
terest for the next period. 


INTEREST, MARITIME. See Marr 
TIME INTEREST. 


INTEREST OR NO INTER4ST. 
‘These words, inserted in an insurance poliey, 
mean that the question whether the insured 
has or has not an insurable interest in the 
subject-matter is waived, and the policy isto 
be good irrespective of such interest. ‘The 
effect of such a clause is to make it a zoager 
policy. 


INTEREST POLICY. In insurance, 
One which actually, or prima facie, covers a 
substantial and insurable interest; as op- 
posed to a wager policy. 


Interest reipublices ne maleficia re- 
Mmaneant impunita. It concerns the state 
that crimes remain not unpunished. Jenk, 
Cent. pp. 30, 31, case 59; Wing. Max. 501, 


Interest reipublicee ne sua quis male 
utatur. It concerns the state that persona 
do not misuse their property. 6 Coke, 36a. 


Interest reipublics quod homines con- 
serventur. It concerns the state that [the 
lives of] men be preserved, 12 Coke, 62. 


Interest reipublicss res judicatas non 
rescindi. It concerns the state that things 
adjudicated be not rescinded. 2 Inst. 360. 
It is matter of public concern that solemn 
adjudications of tlhe courts should not be dis- 
turbed. See Best, Ev. p. 41, § 44. 


Interest reipublics suprema hominum 
testamenta rata haberi. It concerns the 
state that men’s last wills be held valid, [or 
allowed to stand.] Co. Litt. 2360. 


Interest reipublicce ut carceres sint in 
tuto. It converns the state that prisons be 
safe places of confinement. 2 Inst. 589. 


Interest (imprimis) reipublice ut pax 
in regno conservetur, et quecunque paci 
adversentur provide declinentur. It es- 
pecially concerns the state that peace be pre- 
served in the kingdom, and that whatever 
things are against peace be prudently avoided. 
2 Inst. 158. 


Interest reipublice ut quitibet re sua 
bene utatur. It is the concern of the state 
that every one uses his property properly. 


Interest reipublice: ut sit finis litium. 
It concerns the state that there be an end of 
lawsuits. Co, Litt. 303. It is for the gen 


REST 5 UIT 


at a period be put to litigation. 


SP SUIT. In English law. 
the probate branch of the high 
| justice, in which the questicn in 
a3 to which party is entitled toa 
letters of administration of the es- 
deceased person. Wharton. 


EREST UPON INTEREST. 
ml interest, (q. v.) 


‘RL ERENCEH. In patent law, this 
ignates a collision between rights 
or granted; that is, where a person 
patent for the whole or any integral 
he ground alreaiy covered by an ex- 
patent or by a pending application. 


"ERIM. In the mean time; mean- 
e, An assignee ad interim is one ap- 
inted between the time of bankruptcy and 
pointment of the reguiarussignee. 2 Beil, 
m, 330. 


NTERIM COMMITTITUR. Lat. 
ihe mean time, let hiin be committed.” 
mder of court (vr the docket-entry not- 
it) by which a prisoner is committed to 
ison and directed to be kept there unlii 
s further action can be taken, or until 
@ time urrives for the execution of his sen- 


ENTERIM CURATOR. A person ap- 
pointed by justices of the peace to take care 
of the property of a felon convict, until the 
appeintiient by the crown of an administra- 
tor or adminisirators for the same purpose. 
Mozley & Whibley. 


| INTERIM FACTOR. In Scotch law. 
A judicial officer elected or appointed under 
the bankruptcy Jaw to take charge of and pre- 
serve the estate until a fit person shall be 
| elected trustee. 2 Dell, Comm. 357. 


INTERIM OFFICHR, One appointed 
| to fli the office during a temporary vacancy, 
or during an interval caused by the absence 

of incapacity of the regular incumbent, 


| INTERIM ORDER. One male in the 
Inean time, and until something is done. 


INTERIM RECEIPT. A receipt for 
money paid by way of premium for a con- 
tract of insurance for whieh application is 
wade. If the risk is rejected, tlhe money is 
refunded, lesa the pro rata premium. 


INTERLAQUEARE. In old practice. 
To link together, or interchangeably. Writs 


“ 


637 


INTERLOCUTORY ORDER 


were called “interlaqueata” where several 
were issued against several parties residing 
in different connties, each party being sum- 
moned by a separate writ to warrant the ten- 
ant, together with the other warrantors. 
Fieta, lib. 5, e. 4, § 2. 


INTHRLINEATION. The act of writ- 
ing between the lines of an instrument; also 
what is writien between lines. 


INTERLCOCUTOR. In Scoteh practice. 
An order or decree of court; an order made 
in open court, 2 Swint. 362; Arkley, 32. 


INTERLOCUTOR OF RELEVANCY. 
In Seotch practice. A decree as to the rele- 
yancy of a libel or indietment in a criminal 
case. 2 Alis. Crim. Pr. 373. 


INTERLOCUTORY. Provisional; tem- 
porary; not final. Something interyening 
between the commencement and the end of a 
suit which decides some pojnt or matter, but 
is not a final decision of the whole contro- 
versy. ‘ 


INTERLOCUTORY COSTS, In prac- 
tice. Costs accruing upon proceedings in 
the intermediate stages of a cause, as distin- 
guished trom final costs; such ag the costs of 
motions. 3 Chit. Gen. Pr. 597. 


INTERLOCUTORY DECREE. In eq- 
uily practice. A provisional or preliminary 
decree, which is not final and does not de- 
termine the suit, but directs some further 
proceedings preparatory to the final decree, 
A decree pronounced for the purpose of ascer- 
taining matter of law or fact preparatory to 
a final decree. 1 Barb. Ch. Pr. 326, 327. 


INTERLCOCUTGCERY JUDGMENT. A 
judgment which is not final is called “inter- 
locutory;” that is, an iuterlocutory judgment 
is one which determines some preliminary or 
subordinate point or plea, or settles some 
step, question, or default arising in the prog- 
ress of the cause, but does not adjudicate 
the ultimate rights of the parties, or finaily 
put the caseoutofecourt. Thus, a judgment 
or order passed upon any provisicual er ac- 
cessory cliuim or contention is, in general, 
merely interlocutory, although it may finally 
dispose of that particular matter. 1 Black, 
Judgm. § 21. 


INTERLOCUTORY ORDER. “<Anor-. 
der which decides not the cause, but only 
settles some intervening matter relating to 
it; as when an order is made, on a motion in 
chancery, for the plaintiff to have an injune- 
tion te quiet his possession till the hearing of 


INTERLOUUTORY SENTENCE 


the cause. This or any such order, not be- 
ing final, is interlocutory.” Termes de la 
Ley. 


INTERLOCUTORY SENTENCH. In 
the civiliaw. A sentence on some indirect 
question arising from the principal cause. 
Hallifax, Civil Law, b. 3, ch. 9, no. 40. 


INTERLOPERS. Persons who runinte 
business to which they have no right, or who 
interfere wrongfully; persons who enter a 
country or place to trade without license. 
Webster. 


INTERN, To restrict or shut up a per- 
sou, a8 & political prisoner, within a limited 
territory. 


INTERNATIONAL LAW. The law 
which regulates the intercourse of nations; 
the law of nations. 1 Kent, Comm. 1, 4. 
The customary law which determines the 
rights and regulates the intercourse of inde- 
pendent states in peace and war. 1 Wildm. 
Int. Law, 1. 

The system of rules and principles, founded 
on treaty, custom, precedent, and the con- 
sensus of opinion as to justice and moral ob- 
ligation, which civilized uations recognize as 
binding upon them in their mutual dealings 
an relations. 

Public international law is the body of 
rules which control the conduct of independ- 
ent states in their relations with each other. 

Private international law is that branch 
of municipal law which determines before 
the courts of what nation a particular action 
or suit should be brought, and by the law of 
what nation it should be determined; in 
other words, it regulates private rights as 
dependent on a diversity of municipal laws 
and jurisdictions applicable to the persons, 
facts, or things in dispute, and the subject 
of it is hence sometimes called the “conflict 
of laws.” Thus, questions whether a given 
person owes allegiance to a partieular state 
where he is domiciled, whetuer his siatus, 
property, rights, and duties are governed by 
the lex sitiis, the lex loci, tiie fea fori, or the 
lew domicilii, are questions with which pri- 
vate international law hastodeal. Sweet. 


INTERNUNCIO. A minister of a sec- 
ond order, charged with the aitfairs of the 
papal court in countries where that court has 
no uni. 


INTERNUNCIUS. 
tween two parties; a go-bebween. Applied 
to a broker, a8 the agent of both parties. 4 
GC, Rob. Adm. 204. 


638 


A messenger ba- | 


INTERPRETATIO TALIS, ETC. 


INTERPELATION. In the civil law 
The act by which, in consequence of an agre 
Moent, the party bound declares that he will 
not be bound beyond a certain time. Wollf, 
Inst. Nab. 8 752. 


INTERPLEADER. ‘When two or more 
persons claim the same thing (or fund) of a 
third, and he, laying no claim to it himself, 
ig ignorant which of the: has a right to it, 
and fears he may be prejudiced by their pro- 
ceeding against him to recover it, ha may fila 
a bill in equity against them, the object of 
which is to make them litigate their title be 
tween themselves, instead of litigating it 
with him, and such a bill is called a “bill of 
interpleader.” Brown, 

By the statute 1&2 Wm. IY. ec. 58, sum- 
Mary proceedings at law were provided for 
the same purpose, in actions of assumpsit, 
debt, detinue, and trover. And the same 
remedy is known, in one form or the other, in 
most or all of the United States. 

Under the Pennsylvauia practice, when goods 
levied upon by the sheriff are claimed by a third 
party, the sheriff tulcees a role of interpleader on 
the parties, upoa which, when made absolute, a 
feigned issue is framed, and the title to tha goods 
istested, The goods, pending the proceedings, re- 
main in the custody of the defendant upon the ex. 
ecution of a forthcoming bond. Bouvier. 


INTERPOLATE. . To insert words ina 
complete document. 


INTERPOLATION. The act of inter 
polating; the words interpolated, 


INTERPRET. Toconstrue; toseek oub 
the meaning of language; to tranalate orally 
from one tongue to another. 


Interpretare et concordare leges leg- 
ibus, est optimus inierpretandi modus. 
To interpret, and [in such a way as] to har- 
monize laws with laws, is the best mode of 
interpretation. 8 Coke, 169. 


Interpretatio chartarum benigne faci- 
enda est, ut res magis valeat quam pe- 
reat, The inlerpretation of deeds is to ba 
liberal, that the thing may rather have ef- 
fect than fail. Broom, Max. 540. 


Interpretatio fienda est ut res magia 
valeat quam pereat. Jenk. Cent. 198. 
Such an interpretation is fo be adopted that 
the thing may rather stand than fall. 


Interpreiatio talis in ambiguis sem- 
per fienda est ut evitetur inconveniens 
et absurdum. in cases of ambiguity, such 
| an interpretation should always be made 


RETATION 


| inconvenient and absurd may 
‘4 Inst. 328. 


TATION. The discovery 
ntution of the true meaning of 
fo convey ideas. Lieb. Herm. 
on” is a term of wider scope than 
ion ;” for, while the latter is concerned 
staining the sense and meaning of 
matter, the former may also be direct- 
dining the legal effects and consequences 
meévt in question, Hence interpreta- 
Ss construction, but stops at the writ- 


interpretation (interpretatio res!ric- 
Jopted if just reasons, connected with 
mation and character of the text, in- 
to take the words in their narrowest 
. This species of interpretation lias 
lly been called “literal,” but the term 
missible. Lieb. Herm. 54. 

nsive interpretation (inlerpretatio ex- 
¢, called, also; “liberal interpretation”) 
a@ more comprehensive signification of 
rd. Id. 58. 

travagant interpretation (interpretatio 
)is that which substitutes a mean- 
¢ evidently beyond the true one. It is 
efore not genuineinterpretation. Id. 59. 
Free or unrestricted interpretation (inter- 
atio soluia) proceeds simply on the gen- 
i principles of interpretation in good faith, 
t bound by any specitic or superior princi- 
ple. Id. 59. 

Limited or restricted interpretation (in- 
retatio limitata) is when we are inilu- 
eed by other principles than the strictly 
hermeneutic ones. Id. 60. 

Predestined interpretation (interpretatio 

_ predestinata) takes place if the interpreter, 
_ Taboring under a strong bias of mind, makes 
__ the text subservient to his preconceived yiews 

or desires. This includes artful interpreta- 
tion, (inierpretatio vafer,) by which the in- 
terpreter seeks to give a meaning to the text 
other than the one he knows to have been in- 

tended. Id. 60. 

It is said to be either “legal,” which rests 
on the same authority as the law itself, or 

“doctrinal,” which rests upon its intrinsic 
reasonableness. Legal interpretation may 

pe either “authentic,” when it is expressly 
| provided by the legislator, or “usual,” when 
it is derived from unwritten practice. Doc- 
| frinal interpretation may turn on the mean- 
ing of words and sentences, when it is called 
| “prammatical,” or on the intention of the 
legislator, when it is described as “logical.” 
- When logical interpretation stretehes the 
words of a alutute to cover its obvious mean- 


639 


INTERRUPTION 


ing, it is called “extensive;” when, on the 
other hand, it avoids giving full meaning to 
the words, in order not to go beyond the in- 
tention of the legislator, it is called “restrict- 
ive.” Iloll. Jur, 344. 


INTERPRETATION CLAUSE. A 
section of a slatute which defines the mean- 
ing of certain words occurring frequently in 
the other sections. 


INTERPRETER. A person sworn ata 
trial to interpret the evidence of a foreigner 
or a deaf and dumb person to the court. 


INTERREGNUM. Aninterval between 
reigns. ‘The period which elapses between 
the death of a sovereign and the election of 
another. The vacancy which occurs when 
there is no government. 


INTERROGATOIRE. In French law. 
An acti which contains the interrogatories 
made by the judge to the person accused, on 
the facts which are the object of the accusa- 
tion, and the answers of the accused. Poth. 
Proce. Crim. e. 4, art. 2, § 1. 


INTERROGATORIES. A set or series 
of written questions drawn up for the purpose 
of being propounded toa party in equity, a 
garnishee, or a witness whose testimony is 
taken on deposition; a series of formal writ- 
ten questions used in the judicial examina- 
tion of a party or a witness. In taking evi- 
dence on depositions, the interrogatories are 
usually prepared and settled by counsel, and 
reduced to writing in advance of the exami- 
nation. 

Interrogatories are either direct or crosa, 
the former being those which are put on be- 
half of the party calling a witness; the latter 
are those which are interposed by the adverse 
party. 


INTERRUPTIO. Lat. Interruption. 
A term used both in the civil and common 
law of prescription. Calvin. 


Interruptio multiplex non tollit pre- 
scriptionem semel obtentam,. 2Inst. 654, 
Frequent interruption does not take away a 
prescription once secured. 


INTERRUPTION. The occurrence of 
some act or fact, during the period of pre- 
scription, which is sufficient to arrest the run- 
ning of thestatute of limitations. Itis said to 
be either “natural” or “civil,” the former 
being caused by the act of the party; the lat- 
ter by the legal effect or operation of some 
fact or circunistance. 


INTERRUPTION 


Interruption of the possession is where the right 
is not enjoved orexercised continuously; interrup- 
tion of the right is where the person haying or 
claiming the right ceases the exerciseof it in such 
amanner a5 to show that he dees not claim to be 
entitled to exercise it. 

In Seotch law. ‘The true proprietor’s 
claiming his right during the course of pre- 
seviption. Dell. 


INTERSECTION. The point of inter- 
section of two roads is the point where their 
middle lines intersect. 73 Pa. St. 127. 


INTERSTATE COMMERCE. Trallic, 
intercourse, commercial trading, er the trans- 
portation of persons or property between or 
among the several states of the Union, or 


640 


—— 


from or bet ween points in one slate aud points | 


in another state; commerce between two 
states, or between places lying in different 
states. 


INTERSTATE COMMERCE ACT, 
The act of congress of February +, 1887, de- 
signed to regulate commerce between the 
states, and particularly the transportation of 
persons and property, by carriers, between in- 
terstate points, prescribing that charges for 
such transportation shall be reasonable and 
just, prohibiting unjust discrimination, re- 
bates, draw-backs, preferences, pooling of 
freights, ete., requiring schedules of rates to 
be published, establishing a commission to 
carry out the measures enacted, aud preserib- 
ing the powers and duties of such commis- 
sion and the procedure before it. 


INTERSTATE COMMERCE COM- 
MISSION. A eommission created by the 
futerstate commerce act (q. 0.) to carry oul 
the measures therein enacted, composed of 
five persons, appointed by the President; ein- 
powered to inquire into the business of the 
carriers alfected, to enforce the law, to re- 
ceive, investigate, and determine complaints 
made to them of any violation of the act, 
make annual reports, hold stated sessions, etc. 


INTERVENER. An intervener isa per- 
son who voluntarily interposes in an action 
or other proceeding with the leave of the 
COULt. 


INTERVENING DAMAGES. Such 
damages to an appellee as result from the de- 
lay eaused by the appeal. 1 Tyler, 207. 


INTERVENTION. In international 
law. Intervention is such an interference 
between two or more slates as may (accord~ 
ing to the event) result in a resort to force; 
while mediation always is, and is intended to. 


INTESTATE SUCCESSION 


be and to continue, peacefulonly. Interven 
tion bet ween a sovereien and his own subjecis 
is not justified by anything in international 
law; but a remonstrance may be addressed 
to the sovereign in a proper case. Brown. 
In English ecclesiastical law. The pro 
ceeding of a third person, who, not bei 
originally a party to the suit or proceeding, 
but claiming an interest in the subject-matter 
in dispute, in order the better to protect suc 
interest, interposes his claim. 2 Chit, Pr 
492; 3 Chit. Commer. Law, 633; 2 Hagg, 
Const. 137; 3 Phillim. Eee. Law, 586. 
In the civil law. The act by which a 
third party demands to be received as a party 
in a suit pending between other persons. 
The intervention is made either for the 
purpose of being joined to the plaintiff, and 
to claim the same thing he does, or some other 
thing connected with it; or to join the defend 
ant, and wilh him to oppose the claim of the 
plaintiff, which it is lis interest to defeat 
Poth. Proc. Civile, pt. 1, ¢. 2, $7, no. 3 


INTESTABILIS. 
tent to testify. Calvin. 


INTESTABLE. Gne whe has not testar 
mentary capacity; ¢ g., an infant, lunatie, 
or person civilly dead, 


A witness incompe 


INTESTACY. The state or condition of 
dying without having made a vilid will. 


INTESTATE. Without making a will, 
A person is said to dia intestate when he dies 
without making a will, or dies withouk 
leaving anything to testify what his wishes 
were with respect to the disposal of hig 
property after his death, The word is al- 
so often used to signify the person himself. 
Thus, in speaking of the property of a per- 
son who died intestate, it is common to say 
“the intestate’s property;” ¢. e., the property 
of the person dying in an intestate condition. 
Brown. 

Besides the strict meaning of the word as 
above given, there is also a sense in which 
intestacy may be partial; that is, where a 
moan jeaves a will which does not dispose of 
his whole estate, he is said to “die intestate” 
as to the property so omitted, 


INTESTATE SUCCESSION, A suc- 
ceasion is called “intestule”’ when the de 
ceased has left no will, or when his will Jias 
been revoked or annulled asirregular, There- 
fore the heirs ta whom a succession hag fallen | 
by the effects of law only are called “heirs a6 
intestate.” Civil Code La. art. 1096. 


INTESTATO 


OQ. Inthe civil law. Intes- 


awill, Calvin. 


TATUS. In the civil and old 
h law. An intestate; one who dies 
awill, Dig. 50, 17, 7. 


atus decedit, qui aut omnino 
eutum mon fecit; aut non jure 
aut id quod fecerat ruptum irri- 
factum est; aut nemo ex eo hares 
tit. A person dies intestate who either 
pade no testament at all or has made one 
legally valid; or if the testament he has 
be revoked, or made useiess; or if nu 
becomes heir under it. Inst. 3, 1, pr. 


[TTIMATION. In the civil law. A 
ification to a party that some step in a le- 
proceeding is asked or will be taken. 
rticularly, a notice given by the party tak- 
an appeal, to the other party, that the 
urt above will hear the appeal, 


In Scotch law. A formal written no- 


tice, drawn by a notary, to be served on a 


patty against whom a stranger has acquired 
&fight or claim; e. y., the assignee of a debt 
must serve such a notice on the debtor, ath- 
erwisoa payment to the original creditor will 
be good, 


INTIMIDATION. InEnglishlaw. Ev-_ 


ery person commits a misdemeanor, punish- 
able wilh a fine or imprisonment, who wrong- 
fully uses violence to or trtimidutes any other 
person, or his wife or children, with a view 
to compel him to abstain from doing, or to 
do, any act which he has a legal right to 
do, or abstuin from doing. (St. 38 & 39 
Vict. c. 86, § 7.) This enactment is chielly 
directed against outrages by trades-unions. 
Sweet. There are similar statutes in many 
of the United States. 


INTIMIDATION OF VOTERS. This, 
by statute in several of the states, is made 
acriminal offense. Under an early Pennsyl- 
vania act, it was held that, to constitute the 
offense of intimidation of voters, there must 
be a preconceived intention for the purpose 
of intimidating the officers or interrupting 
the election. 3 Yeutes, 429. 


INTITLE. An old form of “entitle.” 
6 Mod. 304. 


INTOL AND UTTOL. In old records. 
Toll or eustom paid for things imported and 
exported. or boughtin and sold out. Cowell. 


INTOXICATEH. Generally relates to the 
use of strong drink. “Intoxicated,” used 
without words of qualification, signilies a 

AM.DICT.LAW—4] 


641 


| ble. 


INTRINSECUM SERVITIUM 


condition produced by drinking intoxicating 
spirituous liquor, and is equivalent to 
“drunk.” No additional word is necded to 
conyey this idea. It is sometimes said that 
a person is intoxicated with opium, or with 
ether, or with Jaughing-gas; but this is an 
unusual or forced use of the word. A com- 
plaint, under a statute authorizing proceed- 
ings against persons found intoxicated, which 
avers that defendant was found intoxicated, 
is in this respect sufficient, and need not al- 
lege upon what Lebecame so. 47 Vt. 204. 


INTOXICATING LIQUORS. Those 
the use of which is ordinarily or commonly 
attended with entire or partial intoxication. 
6 Park. Crim. R. 355. 

The terms “intoxicating Hquor” and “spirituous 
liquor” are not synozymous, All spirituous liquor 
is intoxicating, but all intoxicating liquor is not 
spirituous. Fermented liquor, though intoxicat- 
ing, is not spirituous, because not distilled. 2 
Gray, 501; 4 Gray, 18. 

INTRA. Lat. In; near; within. “In- 
Sra” or “inter” has taken the place of “in- 
twa” in many of the more modern Latin 
phrases. 


INTRA ANNI SPATIUM. Within 
the space of a yeur. Cod. 5,9,2. Intra 
annale tempus. Id. 6, 30, 19, 


INTRA FIDEM. Within belief; credi- 
Calvin, 

INTRA LUCTUS TEMPUS. Within 
the time of mourning. Cod, 9, 1, auth. 


INTRA MG:NIA. Within the walls 
(of a house.) A term applied to domestic or 
menial servants. 1 Bl. Comm. 425. 


INTRA PARIETES. Between walls; 
among friends; out of court; without litiga- 


tion. Culvin. 
INTRA PRASIDIA. Within the de 
fenses. See INFRA PRestpta. 


INTRA QUATUOR MARIA. Within 
the four seas. Shep. Touch. 878. 


INTRA VIRES. An act to said to be 
intra vires (“within the power”) of a person 
or corporation when it is within the scope of 
his or its powers or authority. It is the op- 
posite of ultra vires, (9. v.) 

INTRARE MARISCUM. To drain ex 


marsh or low ground, and convert it into 
herbage or pasture. 


INTRINSECUM SERVITIUM. Com-' 
mon and ordinary duties with the lord’s 
court. 


M 


INTRINSIC VALUE 


INTRINSIC VALUE. The tuatrinsie 
value of a thing is its true, inherent, and es- 
sential value, not depending upon accident, 
place, or person, but the same everywhere 
and te every one. 5 Ired. 698. 


INTRODUCTION. The part of a writ- 
ing which sets forth preliminary matter, or 
facts tending to explain the subject. 


INWFROMISSION. InScotchlaw. The 
assulmption of authority over another's prop- 
erty, either legally or illegally. The irregu- 
lar intermeddling with the effects of a de- 
ceased person, which subjects the party to 
the whole debts of the deceused, is called 
“oitious intromission.” Kames, Eq. b. 8, 
e, 8, § 2. 


INTROMISSIONS. Dealings in stock, 
goods, or cash of a principal coming into the 
hands of his agent, to be accounted for by the 
agent to his principal. 29 Eng. Law & Eq. 
391, 


INTRONISATION. In French eccle- 
siasticallaw. Enthronement. The installa- 
tion of a bishop in his episcopal see. 


INTRUDER. A stranger who, on the 
death of the ancestor, enters on the land, un- 
lawfully, before the heir can enter. 


INTRUSION. A species of injury by 
ouster or amotion of possession from the free- 
hold, being an entry of a stranger, after a 
particular estate of freehold is determined, 
before him in remainder or reversion. 

The name of « writ brought by the owner 
of a fee-simple, elc., against an intruder. 
New Nat. Brey. 453. Abolished by 3 & 4 
Wm. LV. c. 57. 


INTUITUS. A view; regard; contem- 
plation. Diverso iniuitu, (q.v.,) with a dif- 
ferent view. 


INUNDATION. ‘The overflow of waters 
by coming out of their bed. 


INURE. To take effect; to result. 


INUREMENT. Use; user; service to 
the use or benefit of a person. 100 U.S. 583. 


Inutilis labor et sine fructu non est 
effectus logis. Useless and fruitless labor 
is not the effectof law. Co. Litt. 1276. Tbe 
law forbids such recoveries wiose ends are 
yain, chargeable, and unprofitable. Id; 
Wing. Max. p. 110, max. 38. 


INVADIARE. Te pledge or mortgage 
lands. 


INVADIATIO. a pledge or mortgage. 


642 


INVENTOR 


INVADIATUS. One who is under pl 
one who has had sureties or pledges 
for him. Spelman. 


INVALID. Vain; inadequate to its 
pose; not of binding force or legal elli 
lacking in authority or obligation. 


INVASION. An encroachment upon th 
rights of another; the incursion of an arm; 
for conquest or plunder. Webster. 


INVASIONES. The inquisition of ser. 
jeanties and knights’ fees. Cowell. 


INVECTA ET ILLATA. Lat, In the 
civillaw. Things carried in and broughtin, 
Articles brought intoa hired tenement by the 
hirer or tenant, and which became or were 
pledged to the lessor as security for the rent 
Dig. 2, 14, 4, pr. The phrase is adopted in 
Scotch law. See Bell. 


Inveniens libellum famosum et non 
corrumpens punitur. He who finda libel 
and does not destroy it is punished. Moore, 
813. 


INVENT. To find out something new; 
to devise, contrive, and produce something 
not previously known or existing, by the ex- 
ercise of independent investigation and ex- 
periment; particularly applied to machines, 
mechanical appliances, compositions, and pate 
entable inventions of every sort. 


INVENTIO. In the civillaw. Find- 
ing; one of the modes of acquiring titie to 
property by occupancy. Heinecc. lib. 2, tit. 
1, § 350. ; 

In old English law. A thing found; as 
goods, or treasure-troye. Cowell. The plural, 
“tnventiones,” is also used. 


INVENTION. In patent law. The 
act or operation of finding out something 
new; the process of contriving and producing 
something not previously known or existing, 
by the exercise of independent investigation 
and experiment. Also the article or contriy- 
ance or composition so invented, 

An “invention” differs froma“discovery.” The — 
former term is preperly applicable to the contriy- 
ance and production of something that did not be- 
fore exist; while discovery denotes the bringing 
into knowledge and use of something which, al- 
though it existed, was beforeunknown. Thus, we 
speak of the “discovery” of the propertias of light, 
electricity, etc., while the telescope and the elec — 
tric motor are the results of the process of “inyen- 
tion.” 

INVENTOR. One who finds out orcon- 
trives some new thing; one who devises som 
new art, manufacture, mechanical appliance, — 


ho invents a patentable con- 


. A detailed list of articles 
list or schedule of property, 
signation or description of each 
an itemized list of the various 
ituting a collection, estate, stock 
, With their estimated or actual 
| law, the term is particularly ap- 

alist made by an executor, ad- 
or assignee in bankruptcy. 


US. Lat. Found. 
, Lreasure-trove. 
found. 


a 
RITARE. To make proof of a 
Jacob. 


Thesaurus 
Non est inventus, 


T. To loan money upon securi-_ 
more or Jess permanent nature, or to 
in business ventures or real estate, 
ise lay it out, so that it may produce 
or income, 

lotle one with the possession of a fief 
elice. See INVESTITURE. 


TESTITIVE FACT. The fact by 
of which aright comes into existence; 
a grant of a monopoly, the death of one’s 
x. Toll. Jur. 132. 


ESTITURE. <A ceremony whieh 
mpanied the grant of lands in the feudal 
ani consisted in the open and notorious 
y of possession in the presence of the 
r yassals, which perpetuated amoug them 
2 gra of their new acquisition at the time 
heurt of writing was very little known; 
d thus the evidence of the property was 
posed in the memory of the neighborhood, 
no, in case of disputed title, were after- 
Is called upou to decide upon it. Brown. 
ecclesiastical law. Inveslitureis one 
eformalities by which the election of a 
bishop is confirmed by the archbishop. See 
hillim, Ece. Law, 42, et seq. 


INVESTMENT. Money invested. 


INVIOLABILITY. The attribute of 
if secured against violation. The persons 
of ambassadors are inviolable. 


INVITO. Lat. Being unwilling, 
Against or without the assent or consent. 


Invito beneficium non datur. <A ben- 
efit is not conferred on one who is unwilling 
to receive it; that is to say, no one can be 
compelled to accept a benefit. Dig. 50, 17, 

_ 69; Broom, Max. 699, note. 


643 


IPsO FACTO 


INVITO DEBITORE. Against the will 
of the debtor. 


INVITO DOMINO. The owner being 
unwilling; against the will of the owner; 
without the owner’s consent. In order to 
constitute larceny, the property must be tak- 
en invito domino, 


INVOICE. In commercial law. An ac 
count of goods or merchandise sent by mer- 
chants to their correspondents at home or 
abroad, in which the marks of each package, 
with other particulars, areset forth, Marsh. 
Ins. 408; Dane, Abr. Index. 

A list or account of goods or merchandise 
sent or shipped by a merchant to his corre- 
spondent, factor, or consignee, containing the 
particular marks of each description of goods, 
the value, charges, and other particulars. 
Jac. Sea Laws, 302. 

A writing made on behalf of an importer, 
specifying the merchandise imported, and its 
true cost or value. And. Rev. Law, § 294. 


INVOICE BOOK. A book in which in- 
voices are copied. 


INVOICE PRICE of goods means the 
prime cost. 7 Johns. 343. 


INVOLUNTARY. An involuntary act 
is that which is performed with constraint 
(q. v.) or with repugnance, or without the 
will todoit. An action is involuntary, then, 
which is performed under duress. Wolff. 
Inst. Nat. § 5. 


INVOLUNTARY MANSLAUGH-. 


TER. The unintentional killing of a person 
by one engaged in an unlawful, but not fe- 
lonious, act. 4 Steph. Comm. 52. 


IOTA. The minutest quantity possible. 


Iota is the smallest Greek letter. 
“jot” is derived therefrom. 


The word 


Ips leges cupiunt ut jure regantur, 
Ca. Litt. 174. The laws themselves require 
that they should be governed by right. 


IPSH. Lat. 
very person, 


IPSE DIXIT. He himse!f said it; a bare 
assertion resting on tha authority of an in- 
dividual. 


IPSISSIMIS VERBIS. In the identical 
words; opposed to “substantially.” % How. 
719; 5 Ohio St. 346. 


IPSO FACTO. By the fact itself; by the 
mere fact. By the mere effect of an act or a 
fact. 


He himself; the same; the 


[PSO FACTO 644 IRBRITANCY 
In English ecclesiastical law. A cen- | tingnishable from defects in pleadings. 


sureof excommunication in the ecclesiastical 
court, Immediately incurred for divers offen- 
ses, after lawful trial. 


IPSO JURE. By the law itself; by the 
mere operation of law. Calvin, 


Ira furor brevis est. Anger is a short 
insanity. 4 Wend. 336, 355. 


IRA MOTUS. Moved or excited by an- 
ger or passion. A term sometimes formerly 


used in the plea of son assault demesne. 1 
Tidd, Pr. 645. 


IRE AD LAKGUM. To goat large; to 
escape; to be set at liberty. 


IRENARCHA. In Roman law. An 
ofiicer whose duties are described in Dig. 5, 
4,18, 7. See Id. 48, 3, 6; Cod. 10, 75. Lit- 
erally, a peace-oflicer or magistrate. 


IRREGULAR. Not according to rule; 
improper or insufficient, by reason of depart- 
ure from the preseribed course, 


IRREGULAR DEPOSIT. A species of 
deposit which arises when a party, having a 
sum of money which he does not think safe in 
his own hands, confides it to another, (e. 9.» 
a bank,) whois to return to him not the same 
money, buta like sum, when he shall demand 
it. An irregular deposit differs from a mu- 
tuwm simply in this respect: that the latter 
has principally in view the benetit of the bor- 
rower, and the former the benelit of the 
bailor. Story, Bailm. § 84; Poth. du Depot. 
B2, 83. 


IRREGULAR PROCHSS. Sometimes 
the term “irregular process” has been defined 
to mean process absolutely void, and not 
merely erroneous and voidable; but usually 
it has been applied to all provess not issued 
in strict conformity with the law, whether 
the defect appears upon the face of the pro- 
eess, or by reference to extrinsic facts, and 
whether such detects render the process ab- 
solutely void or only voidable. 2 Ind, 252, 


IRREGULARITY. Violation or non- 
observance of established rules and practices. 
The want of adherence to some preseribed 
rule or mode of proceeding; consisting sither 
in omitting todo something that is neces- 
sary for the due and orderly conducting of 
asnit, or doing it in an unseasonable time 
or improper manner. 1Tidd,Pr. 512. “Ir- 
regularity” is the technical term for every 
defect in practical proceedings, or the mode 
of conducting an action or defense, as dis- 


_ beyond the possibility of repair, or beyond 


Chit. Gen. Pr. 509. 

The doing or not doing that, in the co 
of a suit at law, which, conformably 
the practice of the court, ought or ought ne 
to be done. 2 Ind. 252. 

In canon law. Any impediment | 
prevents a man from taking holy orders, 


IRRELEVANCY. The absence of fi 
quality of relevancy in evidence or pleadin 

Irrelevancy, in an answer, consists in statem¢ 
which are not material to the decision of the 
such as do not form or tender any material is! 
18 N. Y. 815, 821. 

IRRELEVANT. In thelaw of evidence. 
Not relevant; not relating or applicabl 
the matter in issue; not supporting the issue, 


IRREMOVABILITY. The status of a 
pauper in England, who cannot be legally 
removed from the parish or union in whith 
he is receiving relief, notwithstanding that 
he has not acquired a settlement there. ¢ 
Steph. Comm. 60. 


IRREPARABLE INJURY. This 
phrase does not mean such an injury as is 


possible compensation in damages, or neces. 
sarily great damage, but includes an injury, 
whether great or small, which ought not to 
be submitted to, on the one hand, or inflicted, 
on the other; and which, because it isso large 
or so small, or is of such constant and fre 
quent occurrence, cannot receive reasonable 
redress in a court of law. 76 Ill, 522 

Wrongs of a repeated and continuing char- 
acter, or which occasion damages that are 
estimated only by conjecture, and not by any 
accurate standard, are included. 8 VPiltsb. 
R. 204. 


IRREPLEVIABLE. That cannot be 
replevied or delivered on sureties. Spelled, 
also, “irreplevisable.” Co. Litt. 145. 


IRRESISTIBLE FORCE. A term ap- 
plied to such an interposition of human 
agency as is, from its nature and power, ab- 
solutely uncontrollable; as the inroads of a 
hostile army. Story, Bailm. § 25. 


IRREVOCABLE. 
voked or recalled. 


Which cannot be re- 


IRRIGATION. The operation of water- 
ing lands for agricultural purposes by arti- 
ficial means. 


IRRITANCY. In Seotch law. The 
happening of a condition oreveut by which 


or other dead, to which a 
annexed, becomes yoid. 


In Scotch law. Avoiding 
1; as an irritant clanse. See 


T CLAUSE. In Scotch law. 
by which certain prohibited acts 
a deed are, if committed, declared 
and void. <A vesolutive clause dis- 
1 puts an end to the right of a pro- 
his committing the acts so declared 


OGARE. In thecivillaw. To im- 
set upon, as a fine. Calvin. To in- 
punishment. To make or ordain, 


OTULATIO. An enrolling; a rec- 


QUI COGNOSCIT. Lat. The cog- 
ing fine. fs cut cognoscitur, the cog- 


3H. In Seoteh law. The period of the 
tion of a tack or lease. 1 Bligh, 522. 


LAND. A piece of land surrounded by 


ISSINT. A law French term, meaning 
»” “so,” giving its name to part of a 
n debt. 


SSUABLI. In practice. Leading to or 
cing an issue; relating to an issue or 


ISSUABLE PLEA. A plea to the mer- 
jis; atraversuble plea. A. plea such that the 
adverse party can join issue upon it and go 
to trial. : 

It is true a plea in abatement is a plea, and, if it 

be properly pleaded, issues may be found on it. 

In the ordinary meaning of the word “plea,” and 
of the word “issuable,” such pleas may be called 

“issuable pleas,” but, when these two words are 
used together, “issuable plea,” or “issuable de- 

tense,” they have a technical meaning, to-wit, 
pleas to the merits, 44 Ga. 434, 


ISSUABLE TERMS. In the former 
practice of the English courts, Hilary term 
and Trinity term were called “issuabie 
terms,” because the issues to be tried at the 
assizes were made up at those terms. 3 Bl. 
Comm. 553. Butthe distinction is superseded 
by the provisions of the judicature acts of 
18738 and 1875, 


ISSUE, v. To send forth; to emit; to 
___— ~promulgate; as, an officer isswes orders, pro- 


645 ISSUE 


cess issues from a court. To put inte circa- 
lation; as, the treasury éssues notes. 


ISSUE, n. The ret of issuing, sending 
forth, emitting, or promulgating; the giving 
a thing its lirst inception; as the issue of an 
order or a writ, 

In pleading. Thedisputed point or ques- 
tion to which the parties in an action have 
narrowed their several alleyations, and upon 
which they are desirous of obtaining the de- 
cision of the proper tribunal. When the 
pla.ntiff and defendant have arrived at some 
specific point or matter affirmed on the one 
side, and denied on the other, they are said 
to be at issue. The question so set apart is 
called the “issue,” and is designated, accord- 
ing to its nature, as an “issue in fact” or an 
“issuein law.” Brown, 

Issues arise upon the pleadings, when a 
fact or conclusion of law is maintained by 
the one party and controverted by the other. 
They are of two kinds: (1) Of law; and (2) 
of fact. Code N. Y. § 248; Rey. Code Iowa 
1880, § 2737; Code Civil Proc. Cal. § 588. 

Issues are classified and distinguished as 
follows: 

General and special. The former is raised 
by a plea which briefly and directly traverses 
the whole declaration, such as “not guilty” 
or “non assumpsit.” The latter is formed 
when the defendant chooses one single ma- 
terial point, which he traverses, and rests 
his whole case upon its determination. 

Material and immaterial. They are so 
described according as they do or do not 
bring up some material point or question 
which, when determined by the verdict, will 
dispose of the whole merits of the case, and 
leave no uncertainty as to the judgment. 

Formal and informal. The former spe- 
cies of issue is one framed in strict aceord- 
ance with the technical rules of pleading. 
The latter arises when the material allega- 
tions of the declaration are traversed, but in 
an inartificial or. untechnical mode, 

Real or feigned. <A real issue is one 
formed in a regular manver in a regular suit 
for the purpose of determining an actual con- 
troversy. A feigned issue is one made up 
by direction of the court, upon a supposed 
case, for the purpose of obtuining the verdict 
of a jury upon some question of faet collat- 


: erally involved in the cause, 


Common issue is the name given to the is- 
sue raised by the plea of non est factum to 
an action for breach of covenant. 

In real law. Deseandants. All persons 
who have descended from a common ancester 


ISSUE 


8 Wes. 257; 17 Vos. 481; 19 Ves. 547; 1 Rop, 
Leg. 90. 

In this sense, the word includes not only a child 
er children, but all other desceudauts in whatever 
degree; and itis so construed generally in deeds. 
But, when used in wills, it is, of course, subject to 
the rule of construction that the intention of the 
testator, as ascertained from the will, is to have 
effect, rather thau “the technical meaning of the 
language used by him; and hence issue may, in 
such a connection, be restricted to children, or to 
descendants living at the death of the testator, 
where such an intention clearly appears. Abbott, 

In business law. A class or series of 
bonds, debentures, etc., comprising all that 
are emitted at one and the same time. 


ISSUE IN FACT. Im pleading. An 
issue taken upon or consisting of matter of 
fact, the fact only, and not the law being 
disputed, and which is to be tried by a jury. 
3 Bl. Comm. 314, 315; Co. Litt. 126u; 3 
Steph. Comm. 572. See Code Civil Proc. Cal. 
§ 590. 


ISSUE IN LAW. Inpleading. Anissue 
upon matter of law, or consisting of matter 
of law, being produced by a demurrer on the 
one side, and a joinder in demurrer on the 
other. 3 Bl. Comm. 314; 3 Steph. Comm. 
572, 580. See Code Civil Proc. Cal. § 589. 


{ISSUE ROLL. In English practice. A 
roll upon which the issue in actions at law 
was formerly required to be entered, the roll 
being entitled of the term in which the issue 
was joined. 2 ‘idd, Pr. 733. It was not, 
however, the practice to enter the issue at 
full length, if triable by the country, until 
after the trial, but only to make an inetpitur 
ontheroll. Id. 734. 


ISSUES. In English law. The goods 
and protits of the lands of a defendant against 
whoma writ of @istringas or distress infinite 
has been issued, taken by virtue of such 
writ, are called “issues.” 3 BI. Comm. 250; 
1 Chit. Crim. Law, 351. 


ITA EST. Lat. So it is; so it stands. 
In modern civil law, this phrase is a form of 
attestation added to exemplifieations froma 
nolary’s register when the same are made by 
the successor in oflice of the notary who made 
the original entries. 


ITA LEX SCRIPTA EST. Lat. So 
the law is written. Dig.40,9,12. The law 
must be obeyed notwithstanding the apparent 
rigor of its application. 3 Bl. Comm. 430. 
We must be content with the law as it stands, 
without inquiring into its reasons. 1 BI. 
Comm. 82. 


646 


a — aaa 


ITER 


ITA QUOD. fn old practice. i 
Formal words in writs. Jta quod habeas 
corpus, so that you have the body. 2 Mod. 
180. 

The name of the stipulation in a submis- 
sion to arbitration which begins with the 
words “so as [ita qwod] the award be made 
of and upon the premises.” 


In old conveyancing. Sothat. Anex- 
pression which, when used in adeed, former- 
ly made an estate upon condition. Litt, 
§ 329. Sheppard enumerates it among the 
three words that are most proper to make an 
eslate conditional. Shep. Touch. 121, 122. 


Ita semper flat relatio ut valeat dis- 
positio. 6Coke,76. Let the interpretation 
be always such that the disposition may pre 
vail, 


ITA TE DEUS ADJUVET. Lat. So 
help you God. The old form of administer- 
ing an oath in England, generally in counéc- 
tion with other words, thus: Ita te Deus 
adjuvet, et sacrosancta Det Evangelia, So 
help you God, and God’s holy Evangelists, 
Ita te Deus adjuvet et omnes sancti, So help 
you God and all the saints. Willes, 308, 


Ita utere tuo ut alienum non ledas, 
Use your own property and your own rights 
in such a way that you will not hurt your 
neighbor, or prevent him from enjoying his, 
Frequently written, “Ste utere tuo,” ete, 
(q. %) 


ITEM. Also; likewise; again. This word 
was formerly used to mark the beginning of 
a new paragraph or division after the first, 
whence is derived the common application of 
it to denvte a separate or distinct particular 
of an account or bill. 

The word is sometimes used as a verb, 
“The whole [costs] in this case that was thus 
itemed to counsel.” Bunb. p. 164, case 233, 


ITER. In the civil law. A way; a 
right of way belonging as a servitude to an 
estate in the country, (predium rustieum.) 
The right of way was of three kinds: (1) 
tier, a right to walk, or ride on horseback, 
or in a litter; (2) actus, a right to drive a 
beast or vehicle; (3) via, a full right of way, 
comprising right to wallt or ride, or drive 
beast or carriage. Hleinec. § 408. Or, as 
some think, they were distinguished by tha 
width of the objects which could be rightfully 
carried over the way; e¢. g., via, 8 feet; actus, 
4 feet, efc. Mackeld. Rom. Law, § 290; 
Bract. fol. 232; 4 Bell, H. L. Se. 390. 


a A journey, espe- 
by a justice in eyre, or 
; Ss try causes according to 
Du Cange; Bract. lib. 3, 


law. A way or route, The 
m of a voyxge; the route or 
 talcen to make the voyage assured. 
d from the voyage itscif. 


eundi, ambulandi hominis; 
mentum agendi vel vehicu- 
y is the right of going or walk- 
3 not include the right of driving 
burden or a carriage. Co. Litt. 


647 


IULE 


56a; Inst. 2, 3, pr.; Mackeld. Rom. Law, 
§ 318. 


ITERATIO., Repetition. Inthe Roman 
law, a bonitary owner micht liberate a slave, 
and the quiritary owner's repetition (iteratio) 
of the process effected a complete manumis- 


sion. Brown. 

ITINERA, Eyres, or circuits. 1 Reeve, 
Eng. Law, 52. 

ITINERANT. Wandering; traveling; 


applied to justices who make circuits. 


IULE. Inold English law. Christmas 


J. 


J. The initial letter of the words “judge” 
and “justice,” for which it frequently stands 
as an abbreviation. Thus, “J. A.,” judge 
advocate; “J. J.,” junior judge; “L. J.,” 
law judge; “P.J.,” president judge; “F.J.,” 
first judge; “A. J.,” assuciate judge; “C. 
J.,” chief justice or judge; “J. P.,” justice 
of the peace; “JJ.,” judges or justices; “J. 
C. P.,” justice of the common pleas; “J. IK. 
B.,” justice of the king’s bench; “J. Q. B.,” 
justice of the queen’s bench; “J. U. B.,” 
justice of the upper bench. 

This letter is sometimes used for “I,” 
as the initial letter of “Institutiones,” in 
references to the Institutes of Justinian. 


JAC. Anabbreviation for “Jacobus,” the 
Latin form of the name James; used princi- 
pally in citing statutes enacted in the reigns 
of the English kings of that name; e. g., 
“St. 1 Jae. 11.” Used also in citing the see- 
ond part of Croke’s reports; thus, “Cro, Jac,” 
denotes “Croke’s reports of cases in the time 
of James I.” 


JACENS. Lat. Lying in abeyance, 


JACENS HMREDITAS. 
ance in abeyance, 


An inherit- 
See H®repiTaAs J ACENS. 


JACET IN ORE. In old English law. 
Ht lies in the mouth. Fletu, lib. 5, e 5, 
§ 49. 

JACK. <A kind of defensive coat-armor 
worn by horsemen in war; not made of solid 
fron, but of many plates fastened together, 
Some tenants were bound by their tenure to 
find ib upon invasion. Cowell. 


JACOBUS. A gold coin worth 24s., 30 
ealled from James 1, who was king when it 
was struck. Ene. Lond. 


JACTITATION. A false boasting; a 
false claim; assertions repeated to the preju- 
dice of another’s right. The species of defa- 
mation or disparagement of another's title to 
real estate known at common Jaw as “slan- 
cer of title” comes under the head of juctita- 
tion, and in some jurisdictions (as in Louis- 
janu) a remedy for this injuryis provided un- 
der the name of an “action of jactitation.” 


JACTITATION OF A RIGHT TOA 
CHURCH SITTING appears to be the 
boasting bya man that he has a right or title 
to a pew or sitting ina chureh te which he 
has legally ne title. 


648 


ee 
8 ee ee ee ee ee SS 


Total amount; collection; assembly, The 
total of a territorial assignment, 
JAMMABUNDY, JUMMABUNDY. 


JAMMALUNDY 


JACTITATION OF MARRIAGE. I 
Engiish ecelesiastical law. The boasting of 
giving out by a party that he or she is married 
to some other, whereby a common reputa 
of their matrimony may ensue. To de 
that result, the person may be put to a pr 
of the actual marriage, failing which proof, 
he or she is pul to silence about it. 3 BL 
Comm. 93. 


JACTITATION OF TITHES 1s the 
boasting by a man that he is entitled to cer 
tain tithes to which he has legally no title. 


JACTIVUS. Lost by default; tossed 
away. Cowell. 
JACTURA. Inthecivillaw. <A tlirow- 


ing of goods overboard in a storm; jettison. 
Loss from such acause. Calvin. 


JACTUS. <A throwing goods overboard 
to ligliten or save the vessel, in which ease 
the goods so sacrificed are a proper subject 
for general average. Dig, 14, 2, “de lege 
Rhodia de Jactu.” 


JACTUS LAPILLI. The throwing 
down of astone. One of the modes, under 
the civil law, of interrupting prescription. 
Where one person was building on another's 
ground, and in this way acquiring a right by 
usucapio, the true owner challenged the in- 
trusion and interrupted (he prescriptive right 
by throwing down one of the stones of tie 
building befure witnessea called for the 
purpose. Tray. Lat. Max. 


JAIL. A gaol; a prison; a building des- 
ignated by law, or regularly used, for the 
confinement of persons held in lawful cus- 
tudy. See GAor 

JAIL DELIVERY. 
ERY. 

JAIL LIBERTIES. 
TIES, 

JAILER. <A keeper or warden of a pris- 
on or jail. 

JAMBEAUX. 


JAMMA, JUMMA. 


See Gaout DELr¥- 


See Gao. Liper- 


Blount. 


In Hindu law. 


Leg-arnior. 


In Hindu law. A written schedule of the 
whole of an assessment. 


Furze, or grass, or ground 
$8; as distinguished from 
e,” or the like. Co. Litt. 


INGI, JAMUNDILINGI. 
ho delivered themselves and prop- 
protection of a more powerful per- 
er to avoid military service and 

8. Spelman. Also a species of 
mg the Germans. Du Cange. The 
commendatt. 


TOR. In old Bnglish law. A 
per. Fleta, lib. 2, ¢. 24, 

1 modern law. A janitoris understood 
@ person employed to take charge of 
8 or buildings, to see that they are kept 
an aml in order, to lock and unlock them, 
| generally to care for them. 84N. Y. 


4QUES. In old English law. Small 


VELIN-MEN. Yeomen retained by 
heriif to escort the judge of assize. 


VELOUR. In Seotch law. Jailer or 
1 Pitc. Crim. Tr. pt. 1, p. 33. 


JEDBURGH JUSTICE, Lynch law. 


‘SEMAN. In old records. Yeoman. Cow- 
ell; Blount. 


JBOFATLE. L. Fr. I 
am in error. 

Certain statutes are called “statutes of 
amendments aud jeofailes” because, where a 
pleader perceives any slip in the form of his 
proceedings, and acknowledges tlie error, 
(jeotuile,) he is at liberty, by those statutes, 
toumend it, The amendment, however, is 
seldom made; but the benefit is attained by 
the court’s overlooking the exeeption. 3 bl, 
Comm. 407; 1 Saund. p. 228, no. 1. 

Jeofaile is whon the parties 1o any suit in plead 
ing have proveeded so far that they have joined 
issue which shall be tried or is tried by a jury or 
inquest, and this pleading or issue is so badly 
pleaded or joined that it will be error if they pro- 
cecd. Then some of the said parties may, by their 
counsel, show it to the court, as well after verdict 
piven and hefore judgment as before the jury is 
charged. And the counsel shall say: “This in- 
quest ye ought not to take.” And if it be after 
verilict, thenhemaysay: “To judgment you cought 
not tio go,” And, because such niceties cceasioned 
many delays in suits, divers statutes are made to 
redress them. Termes de la Ley, 


| JEOPARDY. Danger; hazard; peril. 
|) Jeopardy is the danger of conviction and 
funistiment which the defendant in a erim- 


have failed; I 
An error or oversight in plead- 


649 


JOBBER 


inal action incurs when a valid {indictment 
has been found, and a petit jury has been im- 
paneled and sworn to try the case and give a 
verdict. 


JERGUER. InEnglishlaw. An officer 
of the custom-house who oversees Lhe waiters. 
Techn. Dict. 


JESSE. A large brass candlestick, usu- 
ally hung in the middle of a church or choir. 
Cowell. 


JET. Fr. In French law. Jettison. 
Ord. Mar. liv. 3, 1it. 8; Emerig. Traité des 
Assur, e. 12, § 40. 


JETSAM, A term descriptive of goods 
which, by the act of the owner, have been 
voluntartiy cast overboard from a vessel, in 
astorm or other emergency, to lighten the 
ship. 1¢. B. 118. 

Jetsam is where goods are east into the 
sea, and there sink and remain under waler, 


| 1 Bl. Comm, 292. 


Jetsam differs from “flotsam,” in this; that in 
the latter the goods oat, while in the former they 
sink, and remain under water. It differs also 
from “ligan.” 

dHETTISON, The act of throwing over- 
board from # vessel part of the cargo, in case 
of extreme danger, to liglten the ship. The 
Same naine is also given to the thing or things 
SO cast ont. 

A earrier by water may, when in case of 
extreme peril it is necessary for the safety of 
the ship or cargo, throw overboard, or other- 
wise sacrifice, any or all of the cargo or ap- 
purtenances of theship. Throwing property 
overboard for sucl) purpose is called “jetti- 
son,” and the loss ineurred thereby is called 
a “general average ioss.” Civil Code Cal. 
§ 2148; Civil Code Dak. § 1245. 


JEUX DE BOURSEH. In French law. 
Speculation in the public funds or in stocks; 
gambling speculations on the stock exchange; 
dealings in “options” and “futures,” 


JEWEL. By “jewels” are meant orna- 
ments of the person, such as ear-rings, pearls, 
diamonds, etc., which are prepared to be 
worn. Brown, Ch. 467. See, farther, 43 N. 
Y. 539; 36 Barb. 70; 14 Pick. 370; 38 Fed. 
Rep. 709. 

JOB, The whole of a thing which is to 
be done. “To build by plot, or to work by the 


job, is to undertake a building for a certain 
stipulated prices.” Civil Gode La. art. 2727. 


JOBLBER. One who-buys and sells goods M 


for others; one who buys or seils on the stock 


L 


JOCALIA 


éxchange; a dealer in stocks, shares, or se- 
curities, 


JOCALIA. Inold Englishlaw. Jewels. 
This term was formerly mors properly applied 
to those ornaments which women, although 
married, calltneirown. When these jocalia 
are not suitable fo her degree, they are assets 
forthe payment of debts. 1 Rolle, Abr. 911. 


JOCELET. A little manor or farm. 
Cowell. 


JOCUS. In old English law. A game 
of hazard. Reg. Orig. 290. 


JOCUS PARTITUS, In old English 
practice, A divided game, risk, or hazard. 
An arrangement which the parties to a suit 
were anciently sometimes allowed to make 
by mutual agreement upon a certain hazard, 
(sub pertewlo;) as that one should lose if the 
case turned out in a certain way, and, if it 
did not, that the other should gain, (quod 
unus amittat si ite, sit, et si non sit, quod 
alius lueretur.) Bract. fols. 2116, 3796, 432, 
434, 2000. 


JOHN DOK. The name which was 
usually given to the fictitious lessee of the 
plaintiff in the mixed action of ejectment. 
He was sometimes called “Goodlitle.” So 
the Romans had their fictitious personages 
in law proceedings, as 7'itius, Seius. 


JOINDER. Joining or coupling to- 
gether; uniting two or more constituents or 
elements in one; uniting with another per- 
son in some legal step or proceeding. 


JOINDER IN DEMURRER. When 
a defendant in an action tenders an issue of 
law, (called a “demurrer,”) the plaintiff, if 
he means to maintain his action, must ac- 
cept it, and this acceptance of the defendant’s 
tender, signified by the plaintiff inaset form 
of words, is called a “joinder in demurrer.” 
Brown, 


JOINDER IN ISSUE. In _ pleading. 
A formula by which one of the parties to a 
suil joins in or accepts an issue in fact ten- 


dered by the opposite party. Steph. Pl. 57, | 


206. More commonly termed a “ simiditer.” 
(gq 2) 


JOINDER IN PLEADING. Accept- 
ing the issue, and mode of trial tendered, 
either by demurrer, error, or issue in fact, 
by the opposite party. 


JOINDER OF ACTIONS. This ex- 
pression signifies the uniting of two or more 
demanda or rights of action in one action; 


650 


JOINT DEBTOR ACTS 


the statement of more than one cause of 
tion in a declaration. 


JOINDER OF ERROR. In proce 
ings on a writ of error in criminal cases; 
the joinder of error is a written denial of 
errors’ alleged in the assignment of error 
it answers to a joinder of issue in an action 


JOINDER OF OFFENSES. The 
ing of several distinct charges of crime in th 
same indictment or prosecution. 


JOINDER OF PARTIES. The unit 
ing of two or more persons as co-plaintifia or 
as co-lefendants in one suit. 


JOINT. United; combined; undivided 
done by or against two or more unitedly; 
shared by or between two or more. 


JOINT ACTION. An action in which 
there are two or more plaintiffs, or two or 
more defendants. 


JOINT ADVENTURE. A commercial 
or maritime enterprise undertaken by several 
persons jointly. See ADVENTURE. 


JOINT AND SEVERAL BOND. 4 
bond in which the obligurs bind themselves 
both jointly and individually to the obliges, 
and which may be enforced either by a joint 
action against all or separate actions against 
each. 


JOINT BOND. One in which the obli- 
gors (two or more in number) bind themselves 
jointly, but not severally, and which must 
therefore be prosecuted in a joint action 
against all the obligois. 


JOINT COMMITTER. A joint com- 
mittee of a legislative body comprising two 
chambers is a committee consisting of repre 
sentatives of each of the twu houses, meeting 
and acting together as one committee. 


JOINT CONTRACT. Onemade by two 
or more promisors, who are jointly bound to 
fulfill its obligations, or made to two or more 
promisees, who are jointly entitled to require 
performance of the same. 


JOINT CREDITORS. Persons jointly 
entitled to require satisfaction of the same 
debt or demand. 


JOINT DEBTOR ACTS. Statutes en- 
acted in many of the states, which provide 
that judgment may be given for or agiinst 
one or more of seyeral plaintiffs, and for or 
against one or more of several defendants, i] 
and that, “in an action against severalde 
fendants, the court may, in its diseretion, | 


JOINT DEDTORS 


, leaving the action to proceed against 
ers, whenever a several judgment is 
* The name is also given to statutes 
iding that where an action is instituted 
two or more defendants upon an al- 
oint liability, and some of them are 
‘ad with process, but jurisdiction is not 
ned over the others, the plaintiff may 
| proceed te trial against those who are 
ethe court, and, if he recovers, may have 
ent against all of the defendants whom 
he shows to be jointly liable. 1 Black, 
Juidgm. §§ 208, 255. 


JOINT DEBTORS, Persons united in 
8 joint liability or indebtedness, 


JOINT EXHCUTORS. Co-executors; 
two or more who are joined in the execution 
ofa will. 

JOINT FIAT, In Englishlaw. A fiat 
. bankruptcy, issued against two or more 
trading partners. 


JOINT FINE. In old Englishlaw., “Tf 
a Whole vill is to be fined, a joint fine may be 
Jaid, and it will be good for the necessity of 
it; but, in other cases, fines for offenses are 
to be severally imposed on each particular 
offemier, and not jointly upon all of them.” 
Jacob. 


JOINT HEER, A co-heir. 


JOINT INDICTMENT. When several 
offenders are joined in the same indictment, 
such an indictment is called a “joint indict- 
ment;” as when principals in the first and 
second degree, and accessaries before and 
after the fact, are all joined in the same in- 
 @iciment. 2 Hale, P. C. 173; Brown. 


¢OINT LIVES. This expression is used 
to designate the duration of an estate or right 
which is granted to two or more persons to 
be enjoyed so long as they both (or all) shall 
lve. As soon as one dies, the interest de- 
termines, 


JOINT-STOCK BAWKS. In English 
law. Joint-stock companies for the purpose 
of banking. They are regulated, according 

' to the date of their incorporation, by charter, 
or by 7 Geo. [V.c. 46; 7 & 8 Vict. ce, 32, 
113; 9 & 10 Vict. o, 45, (in Seotiand and Ire- 
land;) 20 & 21 Vict. c. 49; and 27 & 28 Vict. 
6.82; or by the “Joint-Stock Companies Act, 
1862,” (25 & 26 Vict. c. 89.) Wharton, 


JOINT-STOCK COMPANY. An un 
incorporated association of individuals for 


651 


JOINT TENANTS 


judgment against one or more of | business purposes, resembling a partnershi, 


in many respects, bub possessing a common. 
fund or capital stock, divided into shares, 
which are apportioned among the members 
according to their respective contributions, 
and which are assignable by the owner with- 
out the consent of the other members. 

An association of a large number of per- 
songs united together for the common purpose 
of carrying on wu trade or some useful enter- 
prise capable of yielding profit. The com- 
mon property of the members, applicable te 
the purposes of the company, is called its 
“joint stock,” Wharton, 

The words “joint-stock company” have never 
been used as descriptive of a corporation created 
by special act of the legisiature, and authorized to 
issue certificates of stock to its shareholders, They 
describe a partnership made up of many persous 
acting under articles of association, for the pur- 
pose ofcarrying on a particular business, and hav- 
ing acapital stock, divided into shares trausfernble 
at tie pleasure of the holder. 121 Maas, 426. 


JOINT-STOCK CORPORATION. 
This differs from a joint-stock company in 
being regularly incorporated, instead of be- 
ing a mere partnership, but resembles it in 
having a capital divided into shares of stock. 
Most business corporations (as distinguished 
from eleemosynary corporations) are of this 
character. 


JOINT TENANCY, An estate in joint 
tenancy is an estate in fee-simple, fee-tail, 
for life, for years, or at will, arising by pur- 
chase or grant totwoormorepersons. Joint 
tenants have one and the same interest, ac- 
cruing by one and the same conveyance, 
commencing at one and the same time, and 
heid by one and the same undivided posses« 
sion. The grand incident of joint tenaney 
is survivorship, by whieh the entire tenuney 
on the decease of any joint tenant remains 
to the survivors, and at length to the last 
survivor. Pub. St. Mass. 1882, p, 1292, 

A joint interest is one owned by several 
persons in equal shares, by a title created by 
a single will or transfer, when expressly de- 
clared in the will or transfer to be a joint 
tenancy, or when granted or devised to ex- 
ecutors or trustees as joint tenants, Civil 
Code Cal. § 683. 


JOINT TENANTS. Two or moré per- 
sons to whom are granted lands or tenements 
to hold in fec-simple, fee-tail, for life, for 
years, or at will, 2 Bl. Comm. 179. 

Persons who own lands by a joint title 
created expressly by one and the same deed 
or will. 4 Kent, Comm. 557. Joint tenants 
haye one and the same interest, accruing by 


JOINT TRESPASSERS 


one and the same conveyance, commencing 
at one and the same time, and held by one 
aud the same undivided possession. 2 BI. 
Comm. 180. 


JOINT TRESPASSERS. Two or more 
who unite in committing a trespass. 


JOINT TRUSTEES. Two or more per- 
scns who are intrusted with property for the 
benefit of one or more others. 


JOINTRESS, JOINTURESS. A wo- 
man who has an estate settled on her by her 
husband, to hold during her life, if she sur- 
vive him. Co. Litt. 46. 


JOINTURE. A freehold estate in lands 
or tenements secured to the wife, and to take 
effect on the decease of the husband, and to 
continue during her life at the least, unless 
she be herself the cause of its determination, 
21 Me. 369. 

A competent livelihood of freehold for the 
wife of lands and tenements to take effect 
presently in possession or profil, after the de- 
cease of the husband, for the life of the wife 
at least. Co. Litt. 366; 2 Bl Comm. 1387. 

A jointure strictly signifies a joint estate 
limited to both husband and wife, and such 
was its original form; but, in its more usual 
form, it is a sole estate limited to the wife 
ouly, expectant upon a life-estate in the hus- 
band. 2 Bl. Comm. 137; 1 Steph. Comm, 255, 


JONCARIA, or JUNCARIA. Land 
where rushes grow. Co. Lilt. da. 


JORWNALE. As much land as could be 
plowed in one day. Spelman. 


JOUR. A French word, signifying “day.” 
It is used in our old law-books; ag “tout 
jours,” forever. 


JOUR EN BANC. A day in banc. Dis- 
tinguished from “jour en pays,” (a day in 
the country,) otherwise called “jour en nisi 
prius.” 


JOUR IN COURT. In old practice. 
Day in court; day to appear in court; appear- 
ance day. ‘“Jivery process gives the defend- 
ant a day in court.” Hale, Anal. § 8. 


JOURNAL. A daily book; a book in 
which entries are made or events recorded 
from daytoday. In maritime law, the jour- 
nal (otherwise called “log” or “log-book”’) 
is a book kept on every vessel, which con- 
tains a brief record of the eyents and oc- 
currences of each day of a voyaye, with the 
nautical observations, course of the ship, ac- 


652 


JUDAISMUS 


count of the weather, ete. In the system of 
double-entry book-keeping, the journal isa 

account-book into which are transcribed, daily 
or at other intervals, the items entered upon 
the day-book, for more convenient posting 
into the ledger. Inthe usage of legislative 
bodies, the journal is a daily record of th 
proceedings of either house. It is kept by 
the clerk, and in it are entered the appoint. 
ments and actions of committees, introdue- 
fion of bills, motions, votes, resolutions, ete, 
in the order of their occurrence. 


JOURNEY. The original signilication 
of this word was a day’s travel. It is now 
applied to a travel by land from place to 
place, without restriction of time. But, 
when thus applied, it is employed to desig- 
nate a travel which is without the ordinary 
habits, business, or duties of the person, to& 
distance from his home, and beyond the cir 
cle of his friends or acquaintances. 653 Ala, 
521. 


JOURNEY-HOPPERS. In English law, 
Regrators of yarn. 8 Ilen. VI. c. 5, 


JOURNEYMAN. A workman hired by 
the day, or other given time. 


JOURNEYS ACCOUNTS. In English 
practice. The name of a writ (now obsolete) 
which might be sued out where a former 
writ had abated without the plaintiff's fault. 
The length of time allowed for taking it out 
depended on the length of the journey the 
party must minake to reach the court; whence 
the name, 


JUBERE. Lat. In the civil law. To 
order, direct, or command. Calvin. ‘The 
word juleo, (lL order,) in a will, was called 
a “word of direction,” as distinguished from 
“precatory words.” Cod. 6, 43, 2. 

To assure or promise, 

To decree or pass a law. 


JUBELACION. In Spanish law. Tha 
privilege of a publie officer to be retired, on 
account of infirmity or disability, retaining 
the rank and pay of his oftice (or part of the 
same) aiter twenty years of public service, — 
and on reaching the age of filty. 


JUDAUS, JUDEUS. Lat. A Jew. 


JUDAISMUS. The religion and rites of 
the Jews. Du Cange. <A. quarter set apart 
for residence of Jews. A usurious rate of 
interest. 1 Mon. Angl. 839; 2 Mon. Angl. 
10, 665. Sea murcus sterlingorum ad ac- 
quietandam terram pradictim de Judaisno, 
tn quo fuit tmpiynorata. Du Cange. An 


JUDEX 


jently accruing to the king from 
Blount. 


x. Lat. In Romanlaw. A pri- 
person appointed by the preetor, with the 

ft of the parties, to try and decide a 
or action commenced before him. Te 
peived from the pretor a written formula 
ucting lim as to the legal principles ae- 
ding to which the action was to be judged. 
Ivin. Hence the proceedings before him 
said to be in jedicic, as those before 
przctor were said to be in jure. 


In later and modern civillaw. A 
judge, in the modern sense of the term. 


Tm old English law. <A juror. <A judge, 
dn modern sense, especially-as opposed to 
justiciarius, t.e., & common-law judge—to 
denote an ecclesiastical judge. Braet. Cols. 
401, 402. 


JUDEX A QUO. In modern civil law. 
The judge rom whom, as juder ad quem is 
the judge to whom, an appeal is made or 
taken, Hallifax, Civil Law, b. 3, c. 11, no, 
a4. 


JUDEX AD QUEM. A judge to whom 
4n appeal is taken, 


dJudex mquitatem semper spectare 
debet. A judge ought always to regard 
equity, Jenk, Cent, p, 45, case 85, 


Judex ante cculos equitatem semper 
habere debet. A judge ought always to 
have equity before his eyes. 


Judex bonus nihil ex arbitrio suo fa- 
ciat, nec proposito domestics voluntatis, 
sed juxzta leges et jura pronunciet. A 
good judge should do nothing of his own ar- 
bitrary will, nor on the dictate of his per- 
sonal inclination, but should decide according 
| to law and justice. 7 Coke, 27a. 


Judex damnatur cum nocens absolvi- 
| tur. The judge is condemned when a guilty 
person escapes punishment. 


JUDEX DATUS. In Roman law. A 
judge given, tliat is, assigned or appointed, 
by the praetor to try a cause. 


Judex debet judicare secundum al- 
legata ef probata. The judge ought to 
decide according to the allegations and the 
proois. 


JUDEX DELEGATUS. A delegated 
judge; a special judge. 


653 


4 


JUDGE ADVOCATE GENERAL 
Judex est Ilex loquens. A judge is the 
law speaking, [the mouth of the law.] 7 
Coke, 4a. 


JUDEX FISCALIS. A fiseal judge; 
one having cognizance of matters relating to 
the jiscus, (g. v.) 


Judex habere debet duos sales,—salem 
sapientie, ne sit insipidus; et sulem 
eonscientiz, ne sit diabolus. A judge 
should have two salts,—the salt of wisdom, 
lest he be insipid; and the salt of conscience, 
lest he be devilish. 


Judex non potest esse testis in pro- 
pria causa. A judge cannot bea witness in 
his own cause. 4 Inst. 279. 


Judes non potest injuriam sibi datam 
punive. A judge cannot punish a wrong 
done to himseif. See 12 Coke, 114. 


Judex non reddit plus quam quod 
petens ipse requirif. A judge does not 
give more than what the complaining party 
himself demands. 2 Inst. 286. 


JUDEX ORDINARIUS. In the civil 
law. An ordinary judge; one who had the 
right of hearing and determining causes as a 
matter of his own proper jurisdiction, (ex 
propria jurisdictione,) and not by virtue of 
a delegated authority. Calvin. 


JUDEX PEDANEUS. In Roman law. 
The judge who was commissioned by the 
pretor to hear a cause was so called, from 
the low seat which he anciently oceupied at 
the foat of the proetor’s tribunal. 


JUDGE. A public officer, appointed to 
preside and to administer the law in a court 
of justice; the chief member of a court, and 
charged with the control] of proceedings and 
the decision of questions of law or discretion. 
“Judge” and “justice” (q. ¥.) are often used 
in substantially the same sense. 


JUDGE ADVOCATE. An officer of a 
court-martial, whose duty is to swear in the 
other members of the court, to advise the 
court, aud to act us the publie prosecutor; 
but he is also so far the counsel for the pris- 
ener as to be bound to protect lin: from the 
necessity of answering criminating questions, 
and to object to leading questions when pro- 
pounded to other witnesses. 


JUDGEH ADVOCATE GENERAL. 
The adviser of the government in reference 
to courts-martial and othermatters of milltary 
law. In England, he is generally a member 


JUDGE-MADE LAW 


of the house of commons and of the govern- 
ment for the time being. 


JUDGE-MADE LAW. A phrase used 
to indicate judicial decisions which construe 
away the meaning of statutes, or find mean- 
ings in them the legislature never intended. 
It is sometimes used as meaning, simply, the 
law established by judicial precedent. Cooley, 
Const, Lim. 70, note. 


JUDGE ORDINARY. By St. 20 & 21 
Vict. c. 85, § 9, the judge of the court of 
probate was made judge of the court for di- 
voree und matrimonial causes created by cuene 
act, under the name af en “Judge ordin: ae 

In Scotland, the title “judge ordinary” 
applied to all those judges, whether ra 
or inferior, who, by the nature of their office, 
have a fixed and determinate jurisdiction in 
all actions of the same general nature, as 
contradistinguished from the old Scoteh privy 
council, or. from thuse judges to whom some 
special matter is committed; such as commis- 
sioners for taking proois, and messengers at 
arms. Bell. 


JUDGE’S CERTIFICATE. In English 
practice. A certificate, signed by the judye 
who presided at the trial of a cause, that the 
party applying is entitled to costs. In some 
cases, this is a necessary preliminary to the 
taxing of costs for such party. 

A statement of the opinion of the court, 
signed by the judges, upon a question of law 
sibmitted to them by the chancellor for their 
decision. See 3 BL Comm. 453. 


JUDGE’S MINUTES, or NOTES. 
Memoranda usually taken by a judge, while 
a trial is proceeding, of the testimony ol wit- 
nesses, of documents offered or admitted in 
evidence, of offers of evidence, and whether 
it has been received or rejected, and the like 
matters. 


JUDGE'S ORDER. An order made by 
a judge at chambers, or out of court. 


JUDGER. A Cheshire juryman. Jacob. 


JUDGMENT. The oflicial and authentic 
decision of a court of justice upon the respect- 
ive rights and claims of the parties to an ac- 
tion or suit thercin litigated and submitted 
to its determination. 

The conclusion of law upon facts found, 
or admitted by the parties, or upon their de- 
fault in the course of the suit. Tidd, Pr. 
930; 32 Md. 147. 

The decision or sentence of the law, given 


654 


JUDGMENT 


by a court of justice or other competent tri 
bunal, as the result of proceedings instituted 
therein for the redress of an injury. 38 BI 
Comm. 395; 12 Minn. 487, (Gil. 326.) 

A judgment is the final determination o: 
the rights of the parties in the action. Code 
N.Y. § 245; Code Civil Proc. Cal. § ome 
Code Civil Proc. Dak. § 228. 


A judgment is the final consideration and deter 
mination of a court of competent jurisdiction upon 
the matter submitted to it, aud it is only evidenced 
by a record, or that which is by law, as the files 
and journal entries of this state, substituted tn its 
stead. Anorder for a judgment is not the judg. 
ment, nor does the entry of such order partake of 
the nature and qualities of a judgment record, 
This must ¢learly ascertain not ouly the deter 
mination of the court upon the subject submitted, 
but the parties in favor of and against whom It op- 
erates. 3 Mich. 88. 


The term “judgment” is also used to de 
note the reason which the court gives for its 
decision; but this is more properly denomi- 
dated an “opinion.” 


Classification. Judgments are either in 
rein or in personam, as to which see June- 
MENT IN REM, JUDGMENT IN PrERSONAM. 

Judgments are either fina! or interlocutory, 
See Code N. C. § 384. 

A final judgment is one which puts an 
end to the action, or disposes of tlie whole 
case, finally and completely, by declaring 
either that the plaintiff is entitied to recover 
a speci{i¢ sum or that he cannut recover, and 
leaving nothing to be done but the execution 
of the judgment. 

A final judgment is one that disposes of tho case, 
either by dismissing it before a hearing is had 
upon the merits, or, after the trial, by rendering 
judgment either in favor of the plaintiff ordefend- 
aut; but no judgment or order which does fot de- 
termine the rights of the partios in the cause, and 
preclude further inquiry as to their rights in the 
premises, is a final judgment. 7 Neb. 398. 


An interlocutory judgment is one given in 
the progress of a cause upon some plea, pro- 
ceeding, or default which is only intermedi- 
ate, and does not finally determine or com- 
plete the suit. 3 Bl. Comm. 396. 

A judgment muy be upon the merits, or it 
may not. <A judgment on the merits is ona 
whieh is rendered after the substance and 
matter of the case have been judicially in- 
vestigated, and the court has decided which 
partly is in the right; as distinguishel from 
a judgment which turns upon some prelimi- 
nary matter or technical point, or which, in 
consequence of the act or default of one of 
the parties, is given without a contest or 
trial. 

Of judginonts rendered without a regular 


JUDGMENT 


r without a complete trial, the several 
are enumerated below. And first: 
ment by default is a judginent ob- 
by one party when the other party neg- 
to take a cerlain necessary step in the 
mn (as, to enter an appearance, or to 
d) within the propertime. In Louisiana, 
term “contradictory judement” is used 
stinguish a judgment given after the 
ties have been heard, either in support of 
r claims or in their defense, from a judg- 
nt by default, 11 La. 366. 

Judgment by confession is where a defend- 
ant gives the plaintiff a cognovii or written 
confession of the action (or “contession of 
judgment,” as it is frequently called) by vir- 
tue of which the plaintiff enters judgrnent. 

Judgment nil dictt is a judgment rendered 
for the plaintiff when the defendant “says 
nothing;” that is, when he noglects to plead 
to the plaintiff’s declaration within the proper 
time. 

Judgment by non sum tnformuius is one 
which is rendered when, instead of entering 
a plea, the defendant's attorney says he is nob 
informed of any answer to be lai to the 
aclion. Steph. Pl. 130. 

Judgment of nonsuit is of two kinds,— 
voluntary and involuntary, When plaintiff 
abandons his case, and consents that judg- 
ment go against him for costs, it is volun- 
tary. But when he, being called, neglects to 
appear, or wlien he has given no evidence on 
which a jury could find a verdict, it is invol- 
unitary. Freem. Judgm, § 6. 

Judgment of retrazit. A judgment ren- 
dered where, after appearance and before 
verdict, the plaintiff voluntarily goes into 
court and enlers on the record that he “with- 
draws his suit.” It differs from a nonsuit. 
{n the latter case the plaintiff may sue again, 
} upon payment of costs; 7 a retvaxit is an 
1) open, Voluntary renunciation of his claim in 
} court, and by it he forever loses his action. 

Judgwent of nollie prosequi. This judg- 

“ ment is entered when plaintiff declares that 

J he will not furiher prosecute his suil, or en- 

try of a stet processus, by which plaintiff 
| agrees that all further proceedings shall be 
stayed. 

Judgment of non pros. (non prosequitur) 
ig one given against the plaintiff for a neg- 
lect to take any of those steps which it is in- 
cumbent on him to take in due time. 

Judgment of cassetur breve or billa (that 
the writ or bill be quashed) is a judgment 
rendered in favor of a party pleading in abate- 
ment to a writ or action. Steph. Pl. 180, 
11. 


65 


5 JUDGMENT 


Judgment of ni? ceapiat per breve or per 
siliam is a judgment in favor of the defend- 
ant upon an issue raised upon a declaration 
or peremptory plea. 

Judgment quod partes saatond This 
isa jndgment of repleader, and is given if an 
issue is formed on so immaterial a point that 
the court cannot know for whom to give 
judgment. The parties must then recon- 
struct their pleadings. 

Judgment of respondeat ouster ia a judg- 
ment given against the defendant, requiring 
him to “answer over,” after he has failed to 
establish a dilatory plea upon which an issue 
in law has been raised. 

Judgment quod recuperet isa judgment in 
favor of the plaintiff, (that he do recover,) 
rendered when he has prevailed upon an is- 
sue in fact or an issue in law other than one 
arising on a dilatory plea. Steph. Pl. 126. 

Judgment non obstante veredicio is a judg- 
ment entered for the plaintiff “notwitlstand- 
ing the verdict” which has been given for 
defendant; which may be done where, after 
verdict and before judgment, it appears by 
the record that the matters pleaded or replied 
to, although verified by the verdict, are in- 
sufficient to constitute a defense or bar to the 
vebion. 

Special, technical names are given to the 
judgments rendered in certain actions. These 
are explained as follows: 

Judgment quod computet isa judgment in 
an action of account-render that the defend- 
ant do accouns. 

Judgment quod partitio fiat is the interloc- 
utory judgment in a writ of partition, that 
partilion be made, 

Judgment guando acciderint. If on the 
plea of plene administrvavit in an action 
against an executor or administrator, or on 
the plea of riens per descent in an action 
against an heir, the plaintiff, instead of tak- 
ing issue on the plea, take judgment of asses 
quando acciderint, in this ease, if assets aft- 
erwards come to the hands of the executor or 
heir, the plaintiff must first sue out a seire 
facius, before he can liave execution. Ii, 
upon this seire factas, assets be found for 
part, the plaintiff may have judgment to re- 
cover so much immediately, and the residue 
of the assets iz futuro. 1 Sid. 448, 

Judgment de melioribus damnis. 
in an action against several persons for a joint 
tort, the jury by mistake sever the dainages by 
giving heavier damages against one defend. 
ant than against the others, the plaintiff may 
cure the defect by taking judgment for the 
greater damages (de melioribus dammnis) 


Where, L 


{ 


JUDGMENT 606 


against that defendant, and entering a nolle 
prosequé (g. 0.) against the others. Sweet. 

Judgment tn error is a judgment rendered 
by a court of error on a record gent up from 
an inferior court. 


JUDGMENT-BOOK. A book required 
to be kept by the clerk, among the records of 
the court, for the entry of judgments. Cade 
N. ¥. § 279. 


JUDGMENT CREDITOR. One who 
is entitled to enforce a judgment by execu- 
tion, (¢. v-) The owner of an unsatisfied 
judgment. 


JUDGMENT DEBTOR. A person 
against whom judgment has been recovered, 
and which remains unsatisfied. 


JUDGMENT DEBTOR SUMMONS. 
Under the English bankruptey act, 1861, 
§§ 76-85, these summonses might be issued 
against both traders and non-traders, and, in 
default of payment of, or security or agreed 
composilion for, the debt, the debtors might 
be adjuiicated bankrupt. ‘This act was re- 
pealed by 32 & 33 Vict. ¢. 33, § 20. The 32 
& 83 Vict. ¢. 71, however, (bankruptcy act, 
1869,} provides (section 7) for the granting 
of a “debtor’s summons,” at the instance of 
creditors, and, in the eyent of failure to pay 
or compound, a petition for adjudication may 
be presented, unless in the events provided 
for by that section. Wharton. 


JUDGMENT DEBTS. Debts, whether 
on simple contract or by specialty, for the 
recovery of which Judgment has been entered 
up, either upon a cognovit or upon a warrant 
of atlorney or as the result of a success{ul 
action. Brown, 


JUDGMENT DOCKET. A list or 
docket of the judgments entered In a given 
court, methodically kept by the clerk or other 
proper officer, vpen to public inspection, and 
intended to afford official notice to interested 
parties of the existence or lien of judgments. 


JUDGMENT IN PERSONAM. A 
judgment against a particular person, as dis- 
tinguished from a judgment against a thing 
ora right or status. The former class of 
judgments are conclusive only upon parties 
and privies; the latter upon all the world. 
See next title. 


JUDGMENT IN REM. A judgment 
in vem is an adjudication, pronounced upen 
the status of some particular subject-matter, 
by a tribunal having competent authority for 
that purpose. It differs from a judgment tn 


ue ee 
Leone 


JUDGMENT NOTE 


personam, in this: that the latter judgment. 
is in form, as well as substance, between the 
parties claiming the right; and that it is so 
inter partes appears by the record itself. 1b 
is binding only upon the parties appearing 
to be such by the record, and those claiming 
by them. A judgment tn'rem is founded on 
& proceeding instituted, not against the per- 
son, a8 such, but against or upon the thing 
or subject-matter itself, whose state or con- 
dition is to be determined, It is a proceed- 
ing todetermine the state or condition of the 
thing itself; and the judgment is a solemn 
declaration upon the siatus of the thing, and 
it ipso facto renders it what it declares it to 
be. 2 Vt. 73. 


Various definitions have been given of a judg 
ment in rem, Dut all are criticised as either in 
complete or coimprehending too much. Itis gen 
erally said to be uw judgment declaratory of the 
siatus of some subject-matter, whether this bea 
person or a thing. Thus, the probate of a will 
fixes the status of the document asa will, Tho 
personal rights and interests which follow ara 
mere incidental results of the status or character 
of the paper, and do not appear on the face of the 
judginent. So, a decree establishing or dissolving 
a marriage is a judgmeut in rem, because it fixes 
the stutusof the peraon. Ajudgment of forfeiture, 
by the proper tribunal, against specific articles or 
goods, for a violation of the revenue laws, is a 
judgmentinvem. But it is objected that the cus- 
tomary definition does not fit such a case, because 
there is no fixing of the status of anything, the 
whole effect being a seizure, whatever the thing 
may be. In the foregoing instances, and many 
others, the judgment is conclusive agaiust all the 
world, without reference to actual presence or 
participation in the proceedings. If the expros- 
sion “strictly in rem” may be applied to any class 
of cases, it should be confined tosuch as these. “A 
very able writer suys: ‘The distinguishing char- 
acteristic of judgments i rem is that, wherever 
their obligation is recognized and enforced as 
against any person, it is equally recognized and 
enforced as against wil persons.’ Itseemsto us that 
thetrue definition ofa ‘judgment tire’ is ‘an ad- 
judication’ against some person or thing, or upon 
the statws of some subject-matter; which, wher- 
ever anji whenever binding upon any person, is 
equally binding upon @il persons.” 10 Mo. App. 
738. 


JUDGMENT NISI. At common law, 
this was a judgment entered on the return 
of the nist prite record, which, according 
to the terms of tne postea, was to become 
absolute wnless otherwise ordered by the 
court within the frst four days of the next 
succeeding term. 


JUDGMENT NOTE. A promissory 
note, embodying an authorization to any at- 
torney, or to a designated attorney, or to the 
holder, or the clerk of the court, to enter an 
appearance for the maker and confess a judg: 


JUDGMENT PAPER 


t against him for a sum therein named, 
n default of payment of the note. 


JUDGMENT PAPER. In English 
practice. A sheet of paper containing an 
_inetpitur of the pleadings in an action at 
Jaw, upon which final judgment is signed by 
the master. 2 Tidd, Pr. 930. 


JUDGMENT RECORD. In English 
practice. A parchment roll, on which are 
transcribed the whole proceedings in the 
cause, deposited and flied of record in the 
treasury of the court, after signing of judg- 
ment, 8 Steph. Comm. 632. In American 
practice, the record is signed, filed, and duck- 
eted by the clerk. 


JUDGMENT ROLL. In English prac- 
tiee, <A roll of parchment containing the 
entries of the proceedings in an action at 
law to the entry of judgment inclusive, and 
whieh is filed in the trensury of the court. 
1 Arch. Pr. K. B. 227, 228; 2 Tidd, Pr. 931. 
See Rou. 


Judicandum est legibus, non exemp- 
lis. Judgment is to be given according to 
the laws, not according to examples or prece- 
dents. 4 Coke, 533; 4 BI, Comm. 405, 


JUDICARE. Inthecivil and old English 
iaw. ‘To judge; to decide or determine ju- 
dicially; to give judgment or sentence. 


JUDICATIO. In the civil law. Judg- 
ing; the pronouncing of sentence, after hear- 
ingacause, Hallifux, Civil Law, b. 3, ¢. 3, 
no. 7. 


JUDICATORES TERRARUM, Per- 
sons in the county palatine of Chester, who, 
on a wit of error, were to consider of the 
judgment given there, and reform it; other- 
wise they forfeited £100 to the crown by 
custom, Jenk. Cent. 71. 


JUDICATURE. 1. The state or profes- 
sion of thosel officers who are employed in 
administering justice; the judiciary. 

a. A judicatory, tribunal, or court of jus- 
tice, 

3, Jurisdiction; the right of judicial ac- 
tion; the seope or extent of jurisdiction. 


JUDICATURE ACTS. The statutes 
of 36 & 37 Viet. c. 66, and 88 & 39 Vict. 
u. 77, which went into ferce November 1, 
1875, with amendments in 1877, ¢. 9; 
1879, c. 78; and 1881, c. 68,—made mest 
important changes in the organization of, 
and methods cf procedure in, the superior 
courts of England, consolidating them to- 

AM, DICT. LAW—42 


637 JUDICIA SUNT TANQUAM, ETO. 


gether so as to constitute ona supreme court 
of judicature, consisting of two divisions,— 

| her majesty’s high court of justice, having 
chiefly original jurisdiction ; and her majesty’s 
court of appeal, whose jurisdiction is chiefly 
appellate. 


Judices non tenentur exprimere cau- 
sam sententis sus. Jenk. Cent. 75, 
Judges are not bound to explain the reason 
of their sentence. 


SJUDICHS ORDINARTY. In the civil 
law. Ordinary judices; the common jucices 
appointed to try causes, and who, according 
to Blackstone, determined only questions of 
fact. 3 Bl. Comm. 315. 


JUDICHS PEDANETY. In thecivillaw. 
The ordinary judices appointed by the praetor 
to try causes. 


JUDICES SELECTI. In the civil law. 
Select or selected judices or judges; thosa 
whe were used in criminal eauses, and be- 
tween whom and modern jurors many points 
of resemblance have been noticed. 3 Bi. 
Comm. 556. 

Judici oficium suum excecenti non 
paretur. A judge exceeding his office is not 
to be obeyed. Jenk. Cent. p. 159, case 84. 
Said of void judgments. 


Fudici satis pona est, quod Deum 
habet ultorem. It is punishment enougno 
for a judge that he has God as his avenger. 
1 Leon. 205. 


JUDICIA. Lat. In Romanlaw. Judi- 
cial proceedings; trials. Judieia publica, 
criminal trials. Dig. 48, 1. 


dsudicia in curia regis non adnihilen- 
tur, sed stent m robore suo quousque 
per errorem aut attinctum adnullentur. 
Judgments in the king’s courts are not to be 
annihilated, but to remain in foree nntil an- 
nulled by error or attaint. 2 Inst. 539. ~ 


Judicia in deliberationibus crebro 
maturescunt, in accelcrato processu nun- 
quam. dudgments frequently become ma- 
tured by deliberations, never by hurried pro- 
cess or precipitation, 3 Inst. 210, 


Judicia posteriora sunt in lege for- 
tiora. 8 Coke, $7. The later decisions ere 
the stronger in law. - 


a ns sss SS eee OO—=E=E=Eeee—— ee 


Judicia sunt tanquam juris dicta, et 
pro veritate aceipinntur. Judgments are, 
us if were, the sayings of the law, and ure 
received as truth. 2 Inst. 537. 


M 


JUDICIAL 


JUDICIAL. 
judge; as judicial authority. 

Relating to or connected with the adminis- 
tration of justice; as a judicial officer. 

Haying the character of judgment or formal 
legal procedure; as a judicial act. 

Proceeding from a.court of justice; as a 
judicial writ, a judicial determination. 


JUDICIAL ACTION. Action ofa court 
upon a cause, by hearing it, and determining 
what shall be adjudged or decreed between 
the parties, and with which is the right of the 
case. 12 Pet. 718. 


JUDICIAL ACTS. Acts requiring the 
exercise of some judicial discretion, as dis- 
tinguished from ministerial acts, which re- 
quire none, 


JUDICTAL ADMISSIONS. Adinis- 
sions made voluntarily by a party which ap- 
pear of record in the proceedings of the 
court, 


JUDICIAL AUTHORITY. The power 
and authority appertaining to the oflice of a 
judge; jurisdiction; the official right to hear 
and determine questions in controversy. 


JUDICIAL COMMITTEE OF THE 
PRIVY COUNCIL. In English law. A 
tribunal composed of members of the privy 
council, being judges or retired judges, which 
acts as the queen’s adviser in matters of law 
referred to it, and exercises a certain appel- 
late jurisdiction, chiefly in eeclesiastical 
causes, though its power in this respect was 
curtailed by the judicature act of 1873. 


JUDICIAL CONFESSION. In thelaw 
of evidence. A confession of guilt, made by 
a prisoner before a magistrate, or in court, in 
thedue course of legal proceedings. 1 Greenl. 
Ey. § 216. 


JUDICIAL CONVENTIONS. Agree- 
ments entered into in consequence of an or- 
der of court; as, for example, entering into a 
bond on taking out a writ of sequestration. 
6 Mart. (N. 8.) 494. 


JUDICIAL DECISIONS. Theopinions 
or determinations of the judges in causes be- 
fore them, particularly in appellate courts. 


JUDICIAL DISCRETION. The power 
confided to a judge to exercise his individual 
discrimination and opinion in deciding cer- 
tain minor or collateral matters. This power 
is not arbitrary, but is confined within nar- 


658 


Belonging to the office of a | row limits, within which, however, its exer 


JUDICIAL SEPARATION 


cise is not subject to review. 


“Judicial discretion” means a discretion to be 
exercised in discerning the course prescribed by 
law. 26 Wend. 142. 


JUDICIAL DOCUMENTS.  Procced- 
ings relating to litigation. They are divided 
into (1) judgments, decrees, and verdicts; (2) 
depositions, examinatious, and inquisitions 
taken in the course of a legal process; (3) 
writs, warrants, pleadings, ete., which ara 
incident to any judicial proceedings. Seel 
Starkie, Iv. 252. 


JUDICIAL MORTGAGE. In the law 
of Louisiana. The lien resulting from judge 
ments, whether rendered on contested cases _ 
or by default, whether Gnal or provisional, 
in favor of the person obtaining them. Civil 
Code La. art. 3821. 


JUDICIAL NOTICE. Theact by which 
a court, in conducting a trial, or framing its 
decision, will, of its own motion, and with- 
out the production of evidence, recognize the 
existence and truth of certain facts, having 
a bearing on the controversy at bar, and 
which, from their nature, are not properly 
the subject of testimony, or which are uni- 
versally regarded as established by common 
notoriety, e. g., the laws of the state, inter- — 
national law, historical events, the constitu- 
tion and course of nature, main geograph- 
ical features, ete. 


JUDICIAL OFFICER. A person in 
whom is vested authority to decide causes or 
exercise powers appropriate to a court, 


JUDICIAL POWER. The authority 
vested in courts and judges, as distinguished 
from the executive and legislative power, 


JUDICIAL PROCEEDINGS. A gen- 
eral term for proceedings relating to, prac- 
ticed in, or proceeding from, a court of jus- 
tice; or the course prescribed to be taken in 
various cases tor the determination of a con- 
troversy or for legal redress or reliel, 


JUDICIAL SALE. A judicial sale is 
one made under the process of a court having 
competent authority to order it, by un officer 
duly appointed and commissioned to sell, as 
distinguished from a sale by an owner in vir- 
tue of his right of property, 8 How. 495. 


JUDICIAL SHPARATION. A separa- 
tion of man and wife by decree of court, less 
complete than an absolute divorce; olherwise 
called a “limited divorce.” 


iW 


JUDICIAL STATISTICS 


Jaw. statistics, published by authority, of 
the civil and criminal business of the United 
Kingdom, and matters appertaining thereto. 
Annual reports are published separately for 
‘England and Wales, for Ireland, and for Scot- 
land. 


JUDICIAL WRITS. In English prac- 
tice. Sucli writs as issue under the private 
geal of the courts, and not under the great 
seal of Bneland, and are tested or witnessed, 
not inthe king’s name, but in the name of 
the chief judge of the court out of which 
they issue. The word “judicial” is used in 
contradistinciion to “original;” oviginal 
writs being suchas issue out of chancery 
under the great seal, and are witnessed in the 
King’s name. See 3 Bl. Comm. 282. 


JUDICIARY, adj. Vertaining or relat- 
ing to the courts of justice, to the judicial 
department of government, or to Lhe admin- 
istration of justice. 


JUDICIARY, 2. That branch of gov- 
ernment invested with the judicial power; 
the system of courts in a country; the body 
of judges; the bench, 


JUDICIARY ACT. The name ecommon- 
ly given to the act of congress of September 
24, 1789, (1 St. at Large, 78,) by which the 
system of federal courts was organized, and 
their powers and jurisdiction defined. 


Judiciis posterioribus fides est adhi- 
benda. Faith or credit is to be given to the 
later judgments. 15 Coke, 14. 


JUDICIO SISTI. A caution, or securi- 
ty, given in Scotch courts for the defendant 
to abide judgment within the jurisdiction. 
stim. Law Gloss. 


Judicis est in pronuntiando sequi 
regulam, exceptione non probata. The 
judge in his decision ought to follow the rule, 
when the exception is not proved. 


Judicis est judicare secundum allegata 
et probata. Dyer, 12. It is the duty of a 
judge to decide according to facts alleged and 
proved. 


Judicis est jus dicere, non dare, It is 
the provinee of a judge to declare the law, 
not topive it. Lofft, Append. 42. 


Jadicis officium est opus disi in die 
suo perficers. It is the duty ofa judge to 
finish the work of each day within that day. 
Dyer, 12. 


659 


JUDICIAL STATISTICS, In English | 


JUGE DE PAIX 


Judicis officium est ut res, ita tempora 
rerum, querere. It is the duty of a judge 
to inquire into the times of things, as wel? as 
into things themselves. Co. Litt. 171. 


JUDICIUM. Lat. Judicial authority or 
jurisdiction; a court or tribunal; a judicial 
hearing or other proceeding; a verdict or 
judgment. 


Judicium a non suo judice datum 
nullius est momenti, 10 Coke, 70. A judg. 
ment given by one who is not the proper 
judge is of no force. 


JUDICIUM CAPITALE. Inold English 
law. Judgment of death; capita] judgment, 
Fieta, lib. 1, ¢. 89, § 2. Called, also, “judé- 
cium vite amissionis,” judgment of loss of 
life. Id. lib. 2, ¢. 1, § 5. 


JUDICIUM DEI. Lat. Inold English 
and European law. The judgment of God; 
otherwise called “divinum judicium,” the 
“divine judgment.” <A term particularly 
applied to the ordeals by fire or hot iron and 
water, and also to the trials by the cross, the 
eucharist, and the corsned, and the ducilum 
or trial by battle, (qg. v.,) it being supposed 
that the interposition of heaven was directly 
manifest, in these cases, in behalf of the in- 
nocent. Spelman; Burrill. 


Judicium est quasi juris dictum. 
Judgment is, as it were, a declaration of law. 


Judicium non debet esse illusorium; 
suum effectum habere debet. A judg- 
ment ought not to be illusory; it ought to 
have its proper effect. 2 Inst. 341, 


JUDICIUM PARIUM. In old Encglish 
law, Jndgment of the peers; judgment of 
one’s peers; trial by jury. Magna Charta, 
¢e. 29. 


Judicium redditur in invitum. Co. 
Litt. 2488. Judgment is given against one, 
whether he will or not. 


Judicium (semper) pro veritate acci- 
pitur. A judgment is always taken for 
truth, [that is, as long ag it stanils in force it 
cannot be contradicted.] 2 Inst. 3880; Co. 
Litt. 89a, 168¢@. 


JUG. In old English law. A watery 
place. Domesday; Cowell. 
JUGE. InFrenchlaw. A judge. 


JUGE DE PAIX. InFrenchlaw. An 
inferior judicial functionary, appointed to de- 
cide summarily controversies of minor im- 
portance, especially such as turn mainly on 


SSS 


JUGERUM 660 


questions of fact. He has also the functions 
of a police magistrate. Ferritre. 


JUGERUM. Anacre. Co. Litt. 5d. As 
much as a yoke (jugwm) of oxen could plow 
in one day. F 


JUGES D’INSTRUCTION. In 
French law. Officers subject to the pract- 
reur imperial or général, who receive in cases 
of criminal offenses the complaints of the 
parties injured, and who sammon and exain- 
ine witnesses upon oath, and, after commu- 
nication with the procwrewr imp <rial, draw 
up the forms of accusation. They have also 
the right, subject to the approval of the same 
superior officer, to admit the accused to bail. 
They are appointed for three years, but are 
re-eligible fora further period of office. They 
are usually chosen from among the regular 
judges. Brown. 


JUGULATOR,. Inold records. A cut 
throat or murderer. Cowell. 


JUGUM. In the civil law. A yoke; a 
measure of land; as much land as a yoke of 
oxen could plow inaday. Nov. 17,¢ 8. 


JUGUM TERRA. In old English law. 
A yoke of land; half a plow-land. Domes- 
duy; Co. Litt. 5a; Cowell. 


JUICIO. In Spanish law. A trial or 
suit. White, New Recop. b. 3, tit. 4, c. 1. 


JUICIO DE APEO. In Spanish law. 
The decree of a competent tribunal directing 
the determining and marking the boundaries 
of lands or estates, 


JUICIO DE CONCURSO DE ACREE- 
DORES. In Spanish law. The judgment 
granted for a debtor who has various cred- 
‘tors, or for such creditors, tu the effect that 
their claims be satisiied according to their 
respective form and rank, when the debtor's 
estate is not suilicient to discharge them all 
in full. Escriche, 


JUMENT. In old Scotch law. An ox 
used for tillage. 1 Pitc. Crim. Tr. pt. 2, p. 
89. 


JUMENTA. In the civil law. Beasts 
of burden; animals used for carrying bur- 
dens. This word did not include “oxen.” 
Dig. 32, 65, 5. 


JUMP BAIL. To abscond, withdraw, 
or secrete one’s self, in violation of the obli- 
gation of a bail-bond. The expression is 
colloquial, and is applied only to the act of 
the principal, | 


JUNTA 


JUNCARIA. In old English law. 
soil where rushes grow. Co. Litt. 5a; Cow 
ell. 


Juncta juvant. United they aid. 4 
portion of the maxim, “Quce non velcant sin 
guia juncta jucant,” (g.v.,) frequently cited, 
3 Man. & G, 99. 


JUNGERE DUELLUM. In old Em 
glish law. To join the duellum,; to engage 
in the combat. Fleta, lib. 1, c. 21, § 1. 


JUNIOR, Younger. This has veen held 
to be no partof a man's name, but an addi- 
tion by use, and a convenient distinction be 
tween a father and son of the same name 
10 Paige, 170; 7 Johns. 549; 2 Caines, 164. 


JUNIOR BARRISTER. A barrister 
under therank of queen’s counsel, Also the 
junior of two counsel employed on the same 
side in acase. Mozley & Whitley. 


JUNIOR COUNSEL. The younger of 
the counsel employed on the same side of a 
case, or the one lower in standing or rank, 
or who is intrusted with the less important 
parts of the preparation or trial of the cause, 


JUNIOR CREDITOR. One whose 
claim or demand accrued at a date poslerior 
to that of a claim or demand held by another 
creditor. 


JUNIOR EXECUTION. One which 
was issued after the issuance of another exe- 
cution, on a different judgment, against the 
same defendant. 


JUNIOR JUDGMENT. One. which 
was rendered or entered after the rendition 
or entry of another judgment, on a different 
claim, against Lhe same defendant, 


JUNIOR WRIT. One which is issued, 
or comes to the officer's hands, at a later time 
than a similar writ, at the suit of another 
party, or on a different claim, against the 
same defendant. 


JUNIPERUS SABINA. In medical 
jurisprudence. This plant is commonly called 
“savin.” 


JUNK-SHOP. A shop where old cord- 
age and ships’ tackle, old iron, raves, bottles, 
paper, etc., are keptandsold. A place where 
odds and ends are purchased and sold. 12 
Rich. Law, 470. 


JUNTA, or JUNTO. A select council 
for taking cognizance of affairs of great con- 
sequence requiring secrecy; a cabal or fac- 
tion. This was a popular nickname applied 


ministry in England, between | 
They clung to cach other for mut- 

otection against the attacks of the so- 

“Reactionist Stuart Party.” 


1 Bl. Comm. 128. 


RA. Rights; laws. 
Jus. 

Jura ecclesiastica limitata sunt infra 
lites separatos. Ecclesiastical laws are 
ited within separate bounds. 3 Bulst. 53. 


Jura ecdem modo destituuntur quo 
constituuntur. Laws are abrogated by the 
game means [authority] by which they are 
made. Broom, Max. 878. 


_ JURA FISCALIA. In English 
Fiscal rights; rights of the exchequer. 
Comm. 45. 


JURA IN RE. Inthecivillaw. Righta 
in a thing; rights which, being separated 
from the dominium, or right of property, 
exist independently of it, and are enjoyed by 
some other person than him who has the do- 
minium. Mackeld. kum. Law, § 237. 


JURA MIXTI DOMINII. In oid En- 
glishlaw. Rights of mixeddeminion. The 
king's right or power of jurisdiction was 80 


law. 
38). 


termed. Hale, Anal. § 6. 
dura nature sunt immutabilia. The 
laws of nature are unchangeable. Branch, 


661 


Prine. 


sons; the rights of persons, 
concern and are annexed to the persons of 
men. 1 Bl. Comm. 122. 


JURA PRADIORUM. In thecivillaw. 
The rights of estates. Dig. 50, 16, 86. 


JURA PERSONARUM. Rightsofper- | : t “state” “i ized political 
Rights whieh | synonym of “sta or “organized politica 


Jura publica anteferenda privatis. 
Publie rights are to be preferred to private. 
Oo, Litt. 180a. Applied to protections. 


Jura publica ex privato [privatis] pro- 
miscue decidi non debent. Public rights 
ought not to be decided promiscuously with 
private. Co. Litt, 1300, 1810. 


JURA REGALIA. In English law. 
Royal rights or privileges. 131. Comm. 117, 
119; 3 Bl. Comm. 44. 


JURA REGIA. In Englishlaw. Royal 
rights; the prerogatives of thecrown. Crabb, 
Com. Law, 174. 


Jura regis specialia non conceduntur 
per generalia verba. The special rights of 
the King are not granted by general words. 
Jenk. Cent. p. 103. 


JURAMENTUM IN LITEM 


JURA RERUM. Rights of things; the 
rights of things; rights which a man may 
acquire over external objects or things un- 
connected with his person. 1 Bl. Comm. 122; 
2 Bl. Comm. 1. 


Jura sanguinis nullo jure civili dirimi 
possunt. The right of blood and kindred 
cannot be destroyed by any civil Jaw. Dig 
50, 17, 9; Bac. Max. reg. 11; Broom, Max 
533; 14 Allen, 562. 


JURA SUMMI IMPERII. Rights of 
supreme dominion; rights of sovereiguty. 1 
BI. Comm. 49; 1 Kent, Comm. 211. 


JUBAL. 1. Pertaining to natural or 
positive right, or to the doctrines of rights 
and obligations; as “jural relations.” 

2. Of or pertaining to jurisprudence; ju- 
ristic; juridical. 

3. Kecognized or sanctioned by positive 
law; embraced within, or covered by, the 
rules and enactments of positivelaw. Thus, 
the “jural sphere” is to be distinguished 
from the “moral sphere;” the latter denoting 
the whole scope or range of ethics or the 
science of conduct, the former embracing 


' only such portions of the same as have been 


made the subject of legal sanction or recog- 
nition, 

4. Founded in law; organized upon the 
basis of a fundamental law, and existing for 
the recognition and protection of rights. 
Tivus, the term “jural society” is used as the 


community. 


JURAMENTA CORPORALES. 
poral oaths, {q. v.) 


JURAMENTUM. Lat. Inthecivil law. 
An oath, 


JURAMENTUM CALUMNIZ. In the 
civil and canon law. The oath of calumny. 
An oath imposed upon both parties to a suit, 
as a preliminary to its trial, to the effect that 
they are not influenced by malice or any sin- 
ister motives in prosecuting or defending the 
same, buf by a belief in the justice of their 
cause. It was also required of the attorneys 
and proctors. 


Cor-~ 


Juramentum est indivisibile; et non 
est admittendum in parte verum et in 
parte falsum. An oath is indivisible: it is 
not to be held partly true and partly ialse, 4 
Inst. 274. 


JURAMENTUM IN LITEM. In the 
civil law. An assessment oath; an oath 
taken by the plaintiff in an action, that the 


JURAMENTUM JUDICIALE 


extent of the damages he has suffcred, esti- 
mated in money, amounts to a certain sum, 
which oath, in certain cases, is accepted in 
lieu of other proof. Mackeld, Rom. Law, 
§ 376. 


JURAMENTUM JUDICIALE. Inthe 
civillaw. An oath which*the judge, of his 
own accord, defers to either of the parties. 

It is of two kinds: First, that which the 
judge defers for the decision of the cause, and 
which is understood by the general name 
“juramentum judiciale,” and is sometiines 
called “suppletory oath,” juramentum sup- 
pletorium, second, that which the judge de- 
fers in order to fix and determine the amount 
of the condemnation which he ought to pro- 
nounce, and which is called “juramentum in 
litem.” Poth. Obl. p. 4, ¢. 3, § 3, art. 8, 


JURAMENTUM NECESSARIUM. In 
Roman law. A compulsory oath. <A dis- 
closure under oath, which the pretor com- 
pelled one of the parties to a suit to make, 
when the other, applying for such an appeal, 
agreed to abide by what his adversary should 
swear. 1 Whart. Ev. § 458; Dig. 12, 2, 5, 2. 


JURAMENTUM VOLUNTARIUM. 
In Roman law. <A voluntary oath. A spe- 
cies of appeal to conscience, by which one of 
the parties to a suit, instead of proving his 
cuse, offered to abide by what his adversary 
should answer under oath. 1 Whart. Ev. 
§ 458; Dig. 12, 2, 34, 6. 


JURARE. To swear; to take an oath. 


Jurare est Deum in testem vocare, et 
est actus divini cultus. 3 Inst. 165. To 
swear is to call God to witness, and is an act 
of religion. 


JURAT. The clause written at the foot 
of an atlidavit, stating when, where, and be- 
fore Whom such aflidavit was sworn. 


JUBATA. In old English law. A jury 
of twelve men sworn. Especially, a jury of 
the common law, as distinguished from the 
assisa. 

The jury clause in a nisi prius record, so 
ealled from the emphatic words of the oid 
forms: “Jurata pontiur imrespecium,” the 
jury is put in respite. Townsh. Pl, 487. 

Also a jurat, (which see.) 


JURATION. The act of swearing; the 
administration of an oath. 


Jurato creditur in judicio. He who 
makes oath is to be believed in judgment. 3 
Inst. 79. 


662 


| entes, ef minus suspecti. 


JURE UXORIS 


JURATOR. A juror; § compurg: 
(9. ®-) 


Juratores debent esse vicini, suffici 
Jurors oug 
be neighbors, of sufficient estate, and 
from suspicion,: Jenk. Cent. 141. 


Juratores sunt judices facti. 
Cent. 61. 


Jen Ke 
Juries are the judges of fact. 


JURATORY CAUTION. In Seotch 
law. A description of caution (securit 
Sometimes offered in a suspension or adyos 
cation where the complainer is not in cite 
cumstances to offer any better. Bell. 


JURATS. In English law. Officers in 
the nature of aldermen, sworn for the govern. 
ment of many corporations. The twelve as. 
sistants of the bailiff in Jersey are called 
Ba urats, ” 


JURE. Lat. 
law. 


JURE BELLI. By the right or law of 
war. 1 Kent, Comm. 126; 1 C. Rob. Adm, 
289. 

JURE CIVILL Bythecivillaw. Inst. 
1, 3, 4; 1 Bl. Comm, 423. 


JURE CORON. In right of the crown, 


JURE DIVINO. By divine right. 1 
Bl. Comm. 191. 


JURE ECCLESIA, 
church. 1 Bl, Comm, 401. 


JURE EMPHYTEUTICO. By the right 
or law of emphytcusis. 8 Bl. Comm. 2382, 
See EMPHYTEUSIS. 


By right; in right; by the 


In right of the 


JURE GENTIUM, By the law of na 
tions. Inst. 1, 3, 4; 1 Bl. Comm. 428, 


Jure natures equum est neminem cum 
alterius detrimento et injuria fieri locu- 
pletiorem. By the law of nature it is not 
just that any one should be enriched by the 
detriment or injury of another. Dig. 50, 17, 
206. 


JURE PROPINQUITATIS. By right 
of propinquilty or nearness, 2 Crabb, lieal 
Prop. p. 1019, § 2898. 


JURE REPRESENTATIONIS. By 
right of representation; in the right of ar 
other person. 2 L1. Comm. 224, 517; 2 Crabb, 
Real Prop. p. 1019, § 2398. 


JURE UXORIS. 
BL Comm. 210. 


In right of a wife. 3 


non est consonum quod aliquis 
in curia regis convincatur 
aliquis de facto fverit attinc- 
is not consonant to justice that any 
should be convicted in the king’s 
sefore any one has been attainted of 
2 Inst. 183. ; 


RIDICAL, Relating to administration 
tice, or office of a judge. 
ular; done in conformity to the laws of 


ed. 


DICAL DAYS. Days in court on 
ich the laws are administered. 


URIDICUS. Lat. Relating to the 
or to the administration of justice; 
fidiecal; lawful. Dies juridieus, a lawful 
y for the transaction of business in court; 
day on which the courts are open. 


JURIS. Lat. Of right; of law. 


_ Juris affectus in executione consistit. 
‘The effect of the law consists in the execution, 
Co. Litt. 2890. 


_ JURIS ET DE JURE. Of law and of 
‘right. A presumption juris et de jure, or an 
‘irrebattable presumption, is one which the 
Jaw will not suffer to be rebutted by any 
counter-evidence, but establishes as conclu- 
sive; while a presumption juris tantwm ia 
‘one which holds good in the absence of evi- 
‘dence to the contrary, but may be rebutted, 


JURIS ET SEISINA CONJUNCTIO., 
The union of scisin or possession and the 
right of possession, forming a complete title. 
2 Bl. Comm. 199, 311. 


Juris ignorantia est cum jus nostrum 
ignoramus. Itisignorance of the law when 
we do not know ourown rights. 9VPick. 130. 


JURIS POSITIVI. Of positive law; a 
regulation or requirement of positive Jaw, as 
distinguished fromi natural or divine law. 1 
BI. Comm. 439; 2 Steph. Comm. 286. 


Juris precepta sunt hee: Honeste vi- 
vere; alterum non ledere; suum cuique 
tribuere. Thesearethe precepts of the law: 
To live honorably; to hurt nobody; to render 
to every one his due. Inst. 1, 1, 3; 1 Bl. 
Comm. 40. 


JURIS PRIVATI. Of private right; 
subjects of private property. Hale, Anal. 
§ 25. 


JURIS PUBLICI. Of common right; 
of common or public use; such things as, at 


EST CONSONUM, ETC. 663 


JURISDICTION CLAUSE 


least in their own use, are common to all the 
king’s subjects; as common highways, com- 
mon bridges, common rivers, and common 
ports. Hale, Anal. § 23. 


JURIS UTRUM. In English law. An 
abolished writ which lay for the parson of a 
church whose predecessor had alienated the 
lands and tenements thereof. Fitzh. Nat. 
Brev. 48. 


JURISCONSULT. A jurist; a person 
skilled in the science of law, particularly of 
international or public law. 


JURISCONSULTUS. Lat. In Roman 
law. An expertin juridical science; a person 
thoroughly versed in the laws, who was ha- 
bitually resorted to, for information and ad- 
vice, both by private persons as his clients, 
and also by the magistrates, advocates, and 
others employed in administering justice. 


Jurisdictio est potestas de publico in- 
troducta, cum necessitate juris dicendi. 
Jurisdiction is a power introduced for the 
public good, on accvunt of the necessity of 
dispensing justice. 10 Coke, 73a. 


JURISDICTION. The power and au- 
thority constitutionally conferred upon (or 
constitutionally recognized as existing in) a 
conrt or judge to pronounce the sentence of 
the law, or to award the remedies provided 
by law, upon a state of facts, proved or ad- 
mitted, referred to the tribunul for decision, 
and authorized by law to be the subject of 
investigation or action by that tribunal, and 
in favor of or against persons (or a ves) who 
present themselves, or who are brougi:t, be- 
fure the court in some manner sanctioned by 
law as proper and suilicient. 1 Black, Judgm. 
§ 215. 

Jurisdiction is a power constitutionally 
conferred upon a judge or magistrate to take 
cognizance of and determine causes according 
to law, and to carry his sentence into execu- 
tion, 6 Pet. 591; 9 Johns. 239; 2 Neb. 185. 


The authority of a court ds distinguished from 
the other departments; judicial power considered 
with reference to its scope and extent as respects 
the questions and persons subject to it; power 
given by law to hear and decide controversies. 
Abbott. 

Jurisdiction is the power to hear and determine 
the subject-matter in controversy between parties 
to the suit; to adjudicate or exercise any judicial 
power over them, 12 Pet. 657, 717. 

Jurisdiction is the power to hear and determines 
a cause; the authority by which judicial officers 
take cognizance of and decide canses. 43 Tex. 440. 


JURISDICTION CLAUSE. In equity 
practice. That part of a bill which is ip. 


JURISDICTIONAL 664 


tended to give jurisdiction of the suit to the 
court, by a general averment that the acts 
complained of are contrary to equity, and 
tend to the injury of the complainant, and 
that he has no remedy, or not a complete 
remedy, without the assistance of a court of 
equity, is called tho “jurisdiction clause.” 
Milf. Eq. Pl. 43. Fy 


JURISDICTIONAL. Pertaining or re- 
lating to jurisdiction; conferring jurisdic- 
tion; showing or disclosing jurisdiction; de- 
fining or limiting jurisdiction; essential to 
jurisdiction. 


JURISINCEPTOR. A student of the 
civil law, 


JURISPERITUS. Skilled or learned in 
the law. 


JURISPRUDENCE. The philosophy of 
law, or the science which treats of the prin- 
ciples of positive law and legal relations. 


“The term is wrougly applied to actual sys- 
tems of law, or to current views of law, or to sug- 
gestions for its amendment, butis the name of a 
science. This science is a formal, or analytical, 
rather than a material, one. [t is the scicuce of 
actual or positive law. Itis wrongly divided into 
‘general’ and ‘ particular,’ or into ‘philosophical’ 
and ‘historical.’ It may therefore be defined as 
the formal science of positive law.” Holl. Jur. 12. 

In the proper sense of the word, “jurisprudence” 
is the science of law, namely, that science which 
has for its function to ascertain the principles on 
which legal rules are based, so as not only to clas- 
sify those rules in their proper order, and show the 
relation in which they stand to one another, but 
also to settle the munuer in which new or doubt- 
ful cases should be brought under the appropriate 
rules. Jurisprudence is more a formal than a ma- 
terial science. It has no direct concern with 
questions of moral or political policy, for they fall 
under the province of ethics and legislation; but, 
when a new or doubtful case arises to which two 
different rules seem, when taken literally, to be 
equally applicable, it may be, and often is, the 
function of jurisprudence to consider the ultimate 
effect which would be produced if each rule were 
applied to an indefinite number of similar cases, 
and to choose thut ruie which, when so applied, 
will produce the greatest advantage to the com- 
munity. Sweet. 


JURISPRUDENTIA, 
common law. 
selence. 


In the civil and 
Jurisprudence, or legal 


Jurisprudentia est divinarum atquo 
humanarum rerum notitia, justi atque 
injusti scientia. “Jurisprudence” is the 
knowledge of things divine and human, the 
science of what is right and what is wrong. 
Dig. 1, 1, 10, 25 Inst. 1, 1, 1. sBhis detini- 
tion is adopted by Bractun, word for word. 
Bruct. fol. 3. 


JULY 


Jurisprudentia legis communis An- 
glie est scientia socialis et copiosa,. 
The jurisprudence of the common law of 
England is a science social and cow prehen- 
sive. 7 Coke, 28a. 


JURIST. One who is versed or skilled 
in law; answering to the Latin “jurisper. 
ttus,” {g. 0.) 

One who is skilled in the civil law, or law 
of nations. The term is now usually applied 
to those who have distinguished themselves 
by their writings on legal subjects. 


JURISTIC. Pertaining or belonging to, 
or characteristic of, jurispradence, or a ju- 
rist, or the legal profession, 


JURISTIC ACT. One designed to have 
a legal effect, and capable thereof. 


JURNEDUM. In old English law. A 
journey; a day’s traveling. Cowell. 


JURO. In Spanish law. A certain per- 
petual pension, granted by the king on the 
public revenues, and more especially on the 
salt-works, by favor, either in consideration 
of meritorious services, or in return for money 
loaned the guvernment, or obtained by it 
through forced loans. Escriche. 


JUROR. One wemberofajury. Some 
times, one who lakes an oath; as in the term 
“non-juror,” a person who refuses certain 
oaths, 


JUROR’S BOOK. A list of persons 
qualified to serve on juries. 


JURY In practice. <A certain number 
of men, selected according to law, and sworn 
(juvati) to inquire of certain mutters of fact, 
and declare the truth upon evidence to be 
laid befure them. This definition embraces 
the various subdivisions of juries; as grand 
Jury, petit jury, common jury, special jury, 
coroners jury, Sheriffs jury, (q+ v.) 

A jury isa body of men temporarily selected 
from the citizens of a particular district, and 
invested with power to present or indict a 
person for a public offense, or to try a ques- 
tion of fact, Code Civil Proc. Cal. § 190. 

The terms “jury” and “trial by jury, "as used in 
the constitution, mean twelve competent men, dis- 
interested and impartial, not of kin, nor persona) 
dependents of either of the parties, having their 
homes within the jurisdictional limits of the court, 
drawn and selected by officers free from all bias in 
favor of or against either party, duly impanelad 
and sworn to render a true verdict according ta 
the law and the evidence. 11 Nev. 39. 

A grand jury is a body of men, (twelve te 
twenty-three in number,) returned in pursu- 


JURY 


ance of Jaw, from the citizens of a county, or 
tity and county, Lefore a court of competent 
jurisdiction, and sworn to inquire of public 
offenses committed or triable within the 
county, or city and county. Code Civil Proc. 
Cal. § 192. 

A tviad jury isa body of men returned from 
the citizens of a particular district before a 
court or officer of competent jurisdiction, and 
sworn to try and determine, by verdict, a 
question of fact. Code Civil Proc. Cal. § 198. 


JURY-BOX. Inpractice. The place in 
court (strictly an inclosed place) where the 
jury sit during the trial of acause. 1 Archb. 
Tr. K. B. 208; 1 Burrill, Pr. 455. 


JURY COMMISSIONER. An officer 
charged wit the duty of selecting the names 
to be put into the jury wheel, or of drawing 
the panel of jurors for a particular term of 
court. 


JURY-LIST. A paper containing the 
names of jurors impaneled to try a cause, or 
it contains the names of all the jurors sum- 
moned to attend court. 


| JURY OF MATRONS. In common- 

law practice. <A jury of twelve matrons or 
discreet women, impanele| upon a writ de 
ventve inspiciendo, or where a female pris- 
oner, being under sentence of death, pleaded 
| her pregnancy as a ground for staying execu- 
tion. In the latter ease, such jury inquired 
into the truth of the plea. 


JURY PROCESS. The process by which 
a jury is summoned in a cause, and by which 
if their attendance is enforced. 


JURY WHEEL. A machine containing 
the names of persons qualified to serve as 
grand and petit jurors, from which, in an 
orde: determined by the hazard of its revolu- 


tions, are drawn a sullicient number of such. | 


names to make up the panels for a given 
term of court. 


JURYMAWN. A juror; one who is im- 
paneled on a jury. 


JURYWOMAN. One member of a jury 
of matrons, (9. 0.) 
JUS. Lat. In Roman law. Right; jus- 


tice; law; the whole body of law; alsoa right. 
. The term is used in two meanings: 

1. “Jus” means “law,” considered in the 
abstract; that is, as distinguished from any 
specilic enactment, the science or department 
of ae a or guast personified factor in 


665 


JUS ACCRESCENDI 


human history or conduct or social develop- 
ment, which we call, in a general sense, “the 
law.” Or if means the law faken asa sys- 
tem, an aggregate, a whole; “the sum total 
of a number of individual laws taken to- 
gether.” Or it may designate some one 
particular system or body of particular laws; 
as in the phrases “jus civile,” “jus gentium,” 
“jus pratorium.” 

2. In a second sense, “jus” signifies “a 
right;” that is, a power, privilege, faculty, 
ordemand inherent in one person and inei- 
dent upon another; or a capacity residing 
in one person of controlling, with the assent 
and assistanee of the state, the actions of 
another, This is its meaning in the expres- 
sious “jus in rem,” “jus accrescendi,” “jus 
possessionts.” 

It is thus seen to possess the same am- 
biguity as the words “droit,” “recht,” and 
“right,” (which see.) 

The continental jurists seek to avoid this 
ambiguity in the use of the word “jus,” by 
calling its former signification “objective,” 
and the latter meaning “subjective.” Thus 
Mackeldey (Rom. Law, § 2) says: “The laws 
of the first kind [compulsory or positive laws] 
form law [jus] in its objective sense, [jus 
est norma agendi, law is a rule of conduct. | 
The possibility resulting from law in this 
sense to do or require another to do is law in 


ae 


(its subjective sense, [jus est fucuttas agendi, 


law is a license to act.] The voluntary ac- 
tion of man in conformity with the precepts 
of law is called ‘ justice,’ [justitia.]” 

Some further meanings of the word are: 

An action. Bract. fol. 3. Or, rather, those 
proceedings in the Roman action which were 
conducted before the prietor. 

Power or authority. Sut juris, in one’s 
own power; independent. Inst. 1, 8, pr.; 
Braet. fol. 3. Adiené juris, under another’s 
power. Inst. 1, 8, pr. 

The profession (ars) or practice of the law. 
| us ponitur pro ipsaarte. Bract. fol. 2b. 

A court or judicial tribunal, (locus in guo 
rediditur jus.) Id. fol. 3, 


JUS ABUTENDI. The right to abuse. 
By this phrase is understood the right to do 
exactly as one likes with property, or having 
full dominion over property. 3 Toullier, 
no. 8b. 


JUS ACCRESCENDI. The right of 
survivorship. The right of the survivor 
or survivors of two or more joint tenants to 
the tenancy or estate, upon the death of one 
or wore of the joint tenants, 


Ni 


JUS ACCRESCEND] 


Jus accrescendi inter mercatores, 
pro beneficio commercii, locum non 
habet. The right of survivorship has no 
place between merchants, fer the benefit of 
commerce. Co. Litt, 182a,; 2 Story, Eq. Jur. 
§ 1207; Broom, Max. 455, There is no sur- 
vivorsliip in cases of partnership, as there is 
in joint-tenancy. Story, Partn. § 90. 


Jus acerescendi preefertur oneribus. 
The right of survivorship is preferred to in- 
cumbraneces. Co. Litt. 185@. Hence no 
dower or curtesy can Le claimed out of a joint 
estate. 1 Steph. Comm. 316. 


Jus acerescendi preefertur ultime vol- 
untati. Theright of survivorship is preferred 
to the Jast will, Co. Litt. 1850. <A devise 
of one’s share of a joint eatate, by will, is no 
severance of the juinture; for no testament 
takes offect till after the death of the testator, 
and by such death the right of the survivor 
(which accrued at the original creation of 
the estate, and has therefore a priority to the 
other) is already vested. 2 Bl. Comm. 186; 
3 Steph. Comin. 316, 


JUS AD REM. A term of the civil law, 
meaning “a right to athing;” thatis, aright 
exercisable by one person over a particular 
article of property in virtue of a contract or 
obligation incurred by another person in re- 
spect to it, and which is enforceable only 
egainst or througl such other person. It is 
thus distinguished from jus dz re, which is a 
complete and absolute dominion over a thing 
available against all persons. 

The disposition of modern writers is to use the 
term “jus ad ren” as descriptive of a right with- 
out possession, and “Jus tn ve” as descriptive of 
& right accompanied by possession. Or, in asome- 
what wider sense, the former denotes an inchoate 
or incomplete right toa thing; the latter, a com- 
plete and perfect right to a thing. 

In canon law. Arighttoathing. An 
inchoate and imperfect right, such as is gained 
by nomination and institutian; as distin- 
guished from jus tn re, or complete and full 
right, such as is acquired by corporal posses- 
sion. 2 Bl. Comm. 312. 


JUS HZLIANUM. A body of laws drawn 
up by Sextus A%lins, and consisting of three 
parts, wherein were explained, respectively: 
(1) The laws of the Twelve Tables; (2) the 
interpretation of and decisions upon such 
Jaws; and (3) the forms of procedure, In 
date, it was subsequent te the jus Fiavianum, 
(q. 0.) Brown. 


JUS HSNECIA. The right of primo- 
geniture, (q. v.) 


666 


JUS CIVILE 


JUS ALBINATUS. The droit daw 
baine, (g. v.) See ALBINATUS JUS. 


JUS ANGLORUM. The laws and 
toms of the West Saxons, in the time of t 
Heptarchy, by which the people were fora 
long time governed, and which were preferred 
before all others. Wharton. 


JUS AQUMDUCTUS. In the civil taw. 
The name of a servitude which gives to the 
owner of land the right to bring down water 
through or from the land of another. 


JUS BANCE. Inold English law. The 
right of bench. The right or privilege of 
having an elevated and separate seat of judy: 
ment, anciently allowed only to the king’a 
judges, who hence were said to administer 
high justice, (swmmam administraut just 
tiam.) Blount. 


JUS BELLI. Thelaw of war. The law 
of nations a3 applied to a state of war, defin- 
ing in particular the rights and duties of the 
belligerent powers themselves, and of neutral 
nations. . 

The right of war; that which may be done 
without injustice with regard to an enemy, 
Gro, de Jure B. iib, 1, ¢. 1, § 3. 


JUS BELLUM DICENDI. 


The right 
of proelaiming war. 


JUS CANONICUM. The canon law, 


JUS CIVILE. Civil law. The system 
of law peculiar to one state or people. Inst, 
1, 2, 1. Particularly, in Roman law, the 
civil law of the Reman people, as distin- 
guished from the jus gentium. The term is 
also applied to the body of law called, em- 
phatically, the “eivil law.” 

The jus civile and the jus gentiwm are distin- 
guished in this way, Al people ruled by statutes 
and customs use a law partly peculiar to them- 
selves, partly common to ali men, The law each 
people has settled for itself is peculiar to the state 
itself, and is called “juscivile,”as being peculiar 
to that very state. The law, again, that natural 
reason has settled among all men,—tha law that is 
guarded among all peoples quite alike,—is called 
the “jus gentium, ” and all nations use itas if law. 
The Roman people, therefore, use a law that is 
partly peculiar to itself, partly common to all men. 
Hunter, Rom. Law, 33. 

But this is not the only, or even the general, use 
ofthe words. What the Roman jurists had chief- 
ly in view, when they spoke of “jus civile,” was 
not local as opposed to cosmopolitan law, but the 
old law of the city as contrasted with the newer 
law introduced by the pretor, (jus pretorium, 
jus honorarium.) Largely, no doubt, the jus gen- 
tium corresponds with the jus pretorium; but 
the correspondence is not perfect. Id. 39 


The civil law is what a people es- 
thes for itself. Inst. 1, 2,1; 1 Jolns, 


[US CIVITATUS. The right of citizen- 
-the freaiom of the city of Rome.: It 

{fers from jus quiritiwm, which compre- 
hended all the privileges of a free native of 
The difference is much the same as 
between “denization” and “naturalization” 
with us, Wharton. 


JUS CLOACZ. In the civillaw. The 
fight of sewerage ordrainage. An easement 
consisting in the right of having a sewer, or 
of conducting suriace water, through tho 
house or over the ground of one’s neighbor. 
Mackeld. Rom. Law, § 317. 


JUS COMMUNE. In the civil law. 
Common right; the common and natural rule 
of right, 2s opposed to jus singulare, (q. v.) 
Mackeld. Rom. Law, § 196. 

In English law. The common law, an- 
awering to the Saxon “foleright.” 1 BI. 
Comm. 67. 


Jus constitui oportet in his que ut 
plurimum accidunt non que ex ino- 
pinate. Laws ought to be made with a view 
to those cases which happen most frequent- 
ly, and not to those which are of rare or ac- 
cidental occurrence, Dig. 1, 3, 3; Broom, 
Max. 43. 


JUS CORONA. In English law. The 
tight of thecrown, or tothecrown, the right 
of succession to the throne. 1 Bl. Comm. 
191; 2 Steph. Comm. 454. 


JUS CUDENDA MONETA. In old 
English law. The right of coining money. 
2 How. State Tr. 118. 


JUS CURIALITATIS, In Englishlaw. 
The right of curtesy. Spelman. 


JUS DARE. To giveor to make the law; 
the function and prerogative of the legislative 
department. 


JUS DELIBERANDI. In thecivil law. 
The right of deliberating. A term granted 
by the proper officer at the request of him 
who is called to the inheritance, (the heir.) 
within which he has the right to investigate 
its condition and to consider whether he will 
accept or reject it. Mackeld. Rom. Law, 
§ 742; Civil Code La. art. 1028, 


Jus descendit, et non terra. <A right 
descends, not the land. Co. Litt. 345. 


667 


JUS FIDUCIARIUM 


JUS DEVOLUTUM. The right of the 
ehurch of presenting a minister to a vacant 
parish, in case the patron shall neglect te ex- 
ercise his right within the time limited by 
law. 


JUS DICERE. To declare the law; to 
say What the lawis. The province of a court 
or judge. 2 Eden, 29; 3 P. Wms, 485. 


JUS DISPOWENDI. The right of dis- 
posing. An expression used either general- 
ly to signify the right of alienation, as when 
we speak of depriving a married woman of 
the jus déisponendt over her separate estate, 
or specially in the law relating to sales of 
goods, where it is often a question whether 
the vendor of goods has the intention of re- 
serving to himself the jus disponendé; i. e., 
of preventing the ownership from passing 
to the purchaser, notwithstanding that he 
(the vendor) has parted with the possession 
of the goods. Sweet. 


JUS DIVIDENDI. The right of dispos- 
ing of realty by will. Du Cange. ; 


JUS DUPLICATUM. A double right; 
the right of possession united with the right 
of property; otherwise called “drott-droit.” 
2 Bi. Comm. 199. 


Jus est ars boni et equi. Law is the 
science of what is good and just. Dig. 1, 1, 
Ly Brack, tole 2G: 


Jus est norma recti; et quicquid est 
contra normam recti est injuria. Law 
is a rule of right; and whatever is contrary 
totheruleofrightisaninjury. 3 Buist. 313. 


Jus et fraus nunquam cohabitant. 
Right and fraud never dwell together. 10 
Coke, 45a. Applisd to the title of a statute. 
Id.; Best, Ev. p. 250, § 208. 


Jus ex injuria non oritur. A right does 
(or can) not arise out of a wrong. 4 Bing. 
639; Broom, Max. 738, note. 


JUS FALCANDI. In old English law. 
The right of mowing or cutting. Fleta, lib, 
4, c. 27, § 1. 


JUS FECIALE. In Roman law. The 
law of arms, or of heralds. A rudimentary 
species of international law founded on the 
rites and religious ceremonies of the different 
peoples. 


JUS FIDUCIARIUM. In tho civil law. 
A right in trust; as distinguished from jus 
legitimum, a legal right. 2 Bl. Comm. 328. 


JUS FLAVIANUM 668 


JUS FLAVIANUM. Inold Roman law. 
A body of laws drawn up by Cneius Flavius, a 
elerk of Appius Claudius, from the materials 
to which he had aceess, It was a populariza- 
tion of the laws. Mackeld. Rum. Law, § 39. 


JUS FLUMINUM. Inthecivillaw. The 
right to the use of rivers. Loce. de Jure 
Mar. lib. 1, c. 6. 


JUS FODIENDI. In the civil and old 
Englishlaw. <A right of digging on another's 
land. Inst. 2, 3, 2; Bract. fol. 222. 


JUS GENTIUM. The law of nations. 
That law which natural reason has establish- 
ed among all men is equally observed among 
all nations, and is called the “law of nations,” 
as being the law which all nations use. Lnst. 
1, 2,1; Dig. 1,1, 9; 1 Bl. Comm. 43; 1 Kent, 
Comm. 7; Mackeld. Rom. Law, § 125. 


Although this phrase had a meaning in the Ro- 
man law which may be rendered by our expression 
“law of nations,” it must not be understood as 
equivalent to what we now call “international 
law,” its scope being much wider. It was orig- 
inally a system of law, or more properly equity, 
gathered by the early Roman lawyers and magis- 
trates from the common ingredientsin the customs 
of the old Italian tribes,—those being the nations, 
gentes, whom they had opportunities of observing, 
—to be used in cases where the jus civile did not 
apply; that is, in cases between foreigners or be- 
tween a Roman citizen and a foreigner. The prin- 
ciple upon which they proceeded was that any rule 
of law which was common to all the nations they 
kuew of must be intrinsically consonant to right 
reason, and therefore fundamentally valid and 
just. From this it was an easy transition to the 
converse principle, viz., that any rule which in- 
stinctively commended itself to their sense of jus- 
tice and reason must be a part of the jus gurtiiim. 
And sothe latter term came eventually to ba about 
synonymous with “equity,” (as the Romans un- 
derstood it,) or the system of preetorian law. 

Moderna jurists frequently employ the term “jus 
yentinm privatum” to denote private interna- 
tionul law, or that subject which is otherwise 
styled the “conflict of laws;” and “jus gentium 
publica” for public international law, or the 
system of rules governing the intercourse of na- 
tions with each other as persons, 


JUS GLADII. The right of the sword; 
the executory power of the law; the right, 
power, or prerogative of punishing for erimne. 
4 Bl. Comm. 177. 


JUS HABENDI. The right to have a 
thing. The right to be put in actual posses- 
sion of property. Lewin, Trusts, 535. 


JUS HABENDI ET RETINENDI. 
A right to have and to retain the profits, 
tithes, and offerings, etc., of arectory or par- 
sonage- 


JUS LATIL 


JUS HAREDITATIS. The right of 
inheritance. 


JUS HAURIENDI. In thecivil and old 
English law. The right of drawing water. 
Fleta, lib. 4, ¢. 27, § 1. 


JUS HONORARIUM. The body of 
Roman law, which was made up of edicts of 
the supreme magistrates, particularly the 
pretors. 


JUS IMAGINIS. In Roman law. The 
right to use or display pictures or statues of 
ancestors; somewhat analoguus to the right, 
in English law, to bear a coat of arias. 


JUS IMMUNITATIS. In ithe ceivillaw. 
The law of immunity or exemption from tha 
burden of public office. Dig. 50, 6. 


JUS IN PERSONAM. A right against 
aperson; a right which gives its possessor a 
power to oblige another person to give or 
procure, to do or not to do, something. 


JUS IN RE. Inthe civillaw. <A right 
in a tuing. A right existing in a person 
with respecb to an article or subject of prop- 
erty, inherent in his relation to it, implying 
coinplete ownership with possession, and 
available ugainst all the world. See Jus ab 
Rem. 


Jus in re inherit ossibus usufructu- 
arli. A right in the thing cleaves to the 
person of the usufructuary. 


JUS IN RE PROPRIA. The right of 
enjoyment which is incident to full ownership 
or property, and is often used to denote the 
full ownership or property itself. It is dis- 
tinguished from jus in re adiend, which is a 
mere easement or right in or over the prop- 
erty of another. 


JUS INCOGNITUM. An unknown 
law. This term is applied by the civilians to 
obsolete laws. Bowyer, Mod. Civil Law, 33. 


JUS INDIVIDUUM. An individual or 
indivisible right; a right incapable of divis- 
ion. 36 Eng. Law & Eq. 25. 


dus jurandi forma verbis difiert, re 
convenit; hune enim sensum habere 
debet: ut Deus invocetur. Grot. de Jur. 
B., 1. 2, ¢. 13,§ 10. The form of taking an 
oath differs in language, agrees in meaning; 
for it ought to have this sense: that the Deity 
is invoked. 


JUS LATIF InRomanlaw. Theright 
of Latium or of the Latins. The principal 
privilege of the Latins seems te have been 


t they had oceasional access to the free- 
of Rome, and a participation in her sa- 
cred rites. Butl. Hor. Jur. 41. 


JUS LATIUM. Initomanlaw. A rule 
of law applicable to magistrates in Latium. 
‘Tt way either majus Latium or minus Lati- 
tuis,_the majus Latium raising to the dignity 
of Roman citizen not only the magistrate 
himself, but also his wife and children; the 
minus Latium raising to that dignity only 
the magistrate himself, H:own. 


JUS LEGITIMUM, A legal right. In 
the etyil law. A right which was enforecea- 
ble in the ordinary course of law. 2 BI. 
Comm. 328. 


JUS MAREITI. The right of a husband; 
especially the right which a husband acquires 
to his wife’s mavable estate by virtue of the 
marriage. 1 Forb. Inst. pt. 1, p. 63. 


JUS MERUM. In old English law. 
Mere or bare right; the mere right of prop- 
erty in lands, without either possession or 
eyon the right of possession. 2 BL Comm. 
197; Bract. fol. 23. 


JUS NATURA, 
See Jus NATURALE. 


JUS NATURALE. The natural law, or 
law of nature; law, or legal principles, sup- 
posed to be discoverable by the light of nat- 
ure or abstract reasoning, or to be taught by 
nate to all nations and men alike; or law 
supposed Lo govern mon and peoples in a 
state of nature, é. e., in advance of organized 
governments or enacted laws. This conceit 
originated with the philosophical jurists of 
Rome, and was gradually extended until the 
plirase came to denote a supposed basis or 
substratum common to all systems of posi- 
tive law, and hence to be found, in greater 
or less purity, inthe laws ofallnations. And, 
conversely, they held that if any rule or prin- 
ciple of law was observed in common by all 
peoples with whose systems they were ac- 
qudinted, it must bea part of the jus natu 
race, or derived from if. Thus the phrases 
“Sus naturale” and “jus gentium’ came to 
be tised interchangeably. 


The law of nature. 


Jus naturale est quod apud homines 
eandem habet potentiam. Natural right 
is that which has the same force among ali 
mankind, 7% Coke, 12. 


JUS NAVIGANDI. 


669 


The right of nav- | 


JUS POSTLIMINIL 
by ships or by sea. Loec. de Jure Mar, lib. 
IH @ 


JUS NECIS. In Roman law. The 
right of death, or of putting to death. A 
right which a fabher anciently had over his 
children. 


Jus non habenti tute non paretur. 
One who has no right cannot be safely 
obeyed. Hob, 146, 


Jus non patitur utidem bis solvatur. 
Law does not suffer that the same thing be 
twice paid. 


JUS NON SCRIPTUM. 
ten law. 1 Bl. Comm. 64. 


JUS PAPIRIANUM. The civil law of 
Papirius. The title of the earliest collection 
of Roman deges curiatw, said to have been 
made in the time of Tarquin, the last of the 
kings, by a pontifes maximus of the name 
of Sextus or Publius Papirius. Very few 
fragments of this collection now remain, and 
the authenticity of these has been doubted. 
Mackeld. Rom. Law, § 21. 


JUS PASCENDI. In the civil and old 
English law. The right of pasturing cattle. 
Inst. 2, 3, 2; Bract. fols. 534, 222. 


JUS PATRONATUS. In English ecele- 
siastical jaw. The right of patronage; the 
right of presenting a elerk to a beneiice, 
Blount. 

A commission from the bishop, where two 
presentations are offered upon the same 
avoidance, directed usually to his changellor 
and others ef competent learning, who are to 
summon a jury ol six clergymen and six lay- 
men te inquire into and examine who ia the 
rightful patron. 3 Bl. Comin. 246; 3 Steph. 
Comm, 517. 


JUS PHRSONARUM. Rights of per- 
sons. Those rights which, in the civil law, 
belong to persons ag such, or in their ditfer- 
ent characters and relations; as parents and 
children, masters and servants, ete. 


JUS PORTUS. In maritime law. The 
right of port or harbor, 


JUS POSSHSSIONIS. 
possession. 


JUS POSTLIMINII. In the civil 
law. The right of postliminy; the right or 
claim of a person who liad been restored to 
the possession of a thing, or to a former con- 
dition, to be considered as though he had 
never been deprived of it. Dig. 49, 15, 5; 3 


The unwrit- 


The right of 


igating or navigation; the right of commerce | Bl. Comm. 107, 210. 


—— 


JUS POSTLIMINIL 670 


In international law. The right by 
which property taken by an eneiny, and re- 
captured or rescued from him by the fellow- 
subjects or alli-s of the original owner, is re- 
stored to the latter upon cerlain terms. 1 
Kent, Comm. 108. 


JUS PRAISENS. In the civil law. A 
present or vested ritht; a right already com- 
pletely acquired. Mackeld. Rom. Law, 8 191. 


JUS PRATORIUM. In the civil law. 
The diseretion of the pretor, as distinct from 
the Zeges, or standing laws. % Bl. Comm. 
49. That kind of law which the pretors in- 
troduced for the purpose of aiding, supply- 
ing, or correeting the civil law for the publie 
benefit. Dig. 1, 1, ?. Called, also, “jus 
honorartum,” (q. 0.) 


JUS PRECARIUM. In the civil law. 
A right toa thing held for another, for which 
there was no remedy. 2 Bi. Comm, 828. 


JUS PRESENTATIONIS. 
of presentation. 


The right 


JUS PRIVATUM. The civil or munic- 
ipal law of Rome. 


JUS PROJICIENDI. In the civil law. 
The name of a servitude which consists in 
the right to build a projection, such as a bal- 
cony or gallery, from one’s house in the open 
space belunying to one’s neighbor, but with- 
out resting on his house. Dig. 50, 16, 242; 
Id. 8, 2, 2; Mackeld. Rom. Law, 3 317. 


JUS PROPRIETATIS. The right of 
property, as distinguished from the jus pos- 
sessionis, or right of possession. Lract. fol. 
8. Called by Bracton “jus merum,” the mere 
right. Id.; 2 Bl. Comm, 197; 3 Bl. Comm. 
19, 176. 


JUS PROTEGENDI. In the civil law, 
The name of a servitude, It is aright by 
which a part of the roof or tiling of one 
house is made to extend over the adjoining 
house. Dig. 50, 16, 242, 1; Id. 8, 2, 25; Id. 
8, 5, 8, 5. 


Jas publicum et privatum quod ex 
naturalibus preceptis aut gentium aut 
civilibus est collectum; et quod in jure 
scripto jus appellatur, id in lege Anglis 
rectum esse dicitur. Co. Litt. 155. Pub- 
lic and private law is that which is collected 


from natural principles, either of nations or | 


in states; aud that which in the civil law is 
ewled “jus,” in the law of Engiand is said to 
be “right.” 


JUS STAPULA 


Jus publicum privatorum pactis mu- 
tari non potest. <A public law or right 
cannot be altered by the agreements of pri- 
vate persons. 


JUS QUASITUM. A right to ask or 
recover; for example, in an obligation there 
is a binding of the obligor, and a jus quest- 
tum in the obligee. 1 Geil, Comm. 323. 


JUS QUIRITIUM. Theold law of 
Rome, that was applicable originally to patri- 
cians only, and, under the Twelve Tables, to 
the entire Roman people, was so called, in 
contradistinction to the jus pratorium, (q. 
v.,) or equity. Brown. 


dus quo universitates utuntur est 
idem guod habent privati. The law 
which governs corporations is the same which 
governs individuals. 16 Mass. 44, 


JUS RECUPERANDI. Theright of re- 
covering [lands. } 


JUS RELICTA. In Scotch law. The 
right of a relict; the right or claim of a relict 
or widow to her share of her husband's es- 
tate, particularly the movables. 2 Kames, 
Eq. 340; 1 Forb. Inst. pt. 1, p. 67. 


JUS REPRESENTATIONIS, The 
right of representing or standing in the place 
of another, or of being represented by an- 
other. 


JUS RERUM. The law ofthings, The 
law regulating the rights and powers of per- 
sons over things; how property is acquired, 
enjoyed, and transferred. 


Jus respicit equitatem. Law regards 
equity. Co. Litt. 246; Broom, Max. 151. 


JUS SCRIPTUM. In Roman law, 
Written law. Inst. 1, 2, 3. All law that 
was actually commitied to writing, whether 
it had originated by enactment or by custom, 
in contradistinction to such parts of the law 
of custom as were not committed to writing. 
Mackeld. Rom. Law, § 126. 

In English law. Written law, or stat- 
ute law, otherwise called “lew seripia,” as 
distinguished from the common law, “lex 
non scripta.” 1 Bl. Comm. 62. 


JUS SINGULARE. In the civil law. 
A peculiar or individual rule, differing from 
the jus commune, or common rule of right, 
and established for some special reason. 
Mackeld. Rom. Law, § 196. 


JUS STAPULAS. In old European law. 
| The law of staple; the right of staple. A 


ae 


JUS STRICTUM 


ht or privilege of certain towns of stop- 
ig imported merchaniise, and compelling 
o be offered for sale in their own markets. 
Loce. de Jure Mar. lib, 1, ce. 10. 


¢US STRICTUM. Strict law; law in- 
terpreted wilhout any modifieation, and in 
its utmost rigor. 


Jus superveniens auctori scerescit suc- 
eessort, A right growing to a possessor ae- 
ernes to the successor, Haik, Lat. Max. 76. 


JUS TERTIL. The right of a third par- 
ty. A tenant, bailee, etc., who pleads that 
the title is in some person other than his 
landlord, bailor, ete., is said to set up a jus 
rer'tii, 

Jus testamentorum pertinet ordinario. 
Yearb.4 Hen. VII, 130. Theright of testa- 
ments belongs to the ordinary. 


JUS TRIPERTITUM. In Roman law. 
A name applied to the Roman law of wills, 
in the time of Justinian, on account of its 
threefold derivation, viz., from the pretorian 
edict, from the civil law, and from the im- 
perial constitutions. Maine, Anc. Law, 207, 


dus triplex est,—proprictatis, posses- 
sionis, ot possibilitatis. Right is threefold, 
—of property, of possession, and of possibili- 
ty. 

JUS TRIUM LIBERORUM. In Ro- 
man law, A right or privilege allowed to 
the parent of thee or more chiidren. 2 Kent, 
Comm, $5; 2 Bl. Comm, 247. These privi- 
leges were an exemption from the trouble of 
guardianship, priority in bearing offices, and 
a treble proportion of corn. Adams, Rom. 
Aut. (Amer. Ind.) 227. 


JUS UTENDI. The right to use proper- 
ty without destroying its substance. It is 
employed in contradistinction to the jus abu- 
tendi. 3 Toullier, no. 86. 


JUS VENANDI ET PISCANDI. 
right of hunting anu fishing. 


The 


Jus vendit quod usus apnorobavit. El- 
les. Postn. 35, The law dispenses what 
use has approved. 


JUSSURANDUM. Lat. 


Jusjurandum inter alios factum nec 
nocere nec prodesse debet. An oath 
mads between others ought neither to hurt 
nor protit. 4 Inst. 279. 


An vath. 


JUST. Right; in accordance with law | tion of some kind. 


and justice. 


671 


JUSTA CAUSA 


> “The words ‘just’ and ‘justly’ do not al 
Ways Mean ‘just’ and ‘justly’ in a moral 
sense, but they not unfrequently, in their 
connection with other words in a sentence, 
bear a very different signification. Itis evi- 
dent, however, that the word ‘just’ in the 
statute [requiring an affidavit for an attach- 
ment to state that plaintitt’s claim is just] 
means ‘just’ in a moral sense; and from its 
isolation, being made 4 separate subdivision 
of the section, it is intended to mean ‘ moral- 
ly just in the most emphutic terms. The 
claim must be morally just, as well as legally 
just, in order to entitle a party to an attach- 
ment.” 5 Kan. 3U0. 


JUST COMPENSATION, As used in 
the constitutional provision that private 
property shall not be taken for public use 
without “just compensation,” this phrase 
means a full and fair equivalent for the loss 
sustained by the taking for public use, It 
may be more or it may be less than the mere 
money value of the property actually taken, 
The exercise of the power being necessary 
for the public good, and all property being 
held subject to its exercises when and as the 
publi¢e good requires it, it would be unjust to 
the public that it should be required to pay 
the owner more than a fair indemnity for the 
loss he sustains by the appropriation of his 
property for the general good. On the other 
hand, it would be equally unjust to the owner 
if he should receive less than a fair indem- 
nity for such loss. To arrive at this fair in- 
demnity, the interests of the public and of 
the owner, and all the cireumstances of the 
particular appropriation, should be taken 
into consideration. Lewis, Em. Dom. § 462. 


JUST TITLE. By the term “just title,” 
in cases of prescription, we do not under- 
stand that which the possessor may have de- 
rived from the trues owner, for then no true 
prescription would be necessary, but a title 
which the possessor may have received from 
any person whom he honestly believed to be 
the real owner, provided the title were such 
as to transfer the ownership of the property. 
Civil Code La, art. 3484. 


JUSTA, In old English law. A certain 
measure of liquor, being as much as was 
autiicient to drink at once. Mon. Angl. t. 1, 
e. 149. 


JUSTA GCAUSA. In the civil law. A 
just cause; 4 lawful ground; a legal transac- 
Muackeld. Rom. Law, 
§ 2d3. 


fii 


JUSTICE 


JUSTICH, v. In old English practice. 
Todo justice; tosee justice done; tosummon 
one to do justice. 


JUSTICH, m. In jurisprudence. The 
constant and perpetual disposition to ren- 
der every man his due. Inst: 1, 1, pr.; 2 
Inst. 56. The conformity of ‘our actions and 
our will to the law. Toull. Droit Civil Fr, 
tit. prél. no. 5, 

In the most extensive sense of the word, it dif- 
fers little from “virtue;” for it includes within 
itself the whole circle of virtues. Yet the com- 
mon distinction between thom is that that which, 
considered positively and in itself, is called “vir- 
tue,” when considered relatively and with respect 
toothers has the name of “justice.” But “justice,” 
being in itself a part of “virtue,” is confined to 
things simply goad or evil, and consists in a man’s 
taking such a proportion of them as he ought. 
Bouvier. 

Commutative justice is that which should 
govern contracts. It consists in rendering 
to every man the exact measure of his dues, 
without regard to his personal worth or mer- 
its, 7. ¢., placing all men on an equality. 
Disiributiéce justice is that which should gov- 
ero the distribution of rewards and punish- 
ments. It assigns toeach therewards which 
his personal merit or services deserve, or the 
proper punishment for his crimes. It does 
not consider all men as equally deserving or 
equally blameworthy, but discriminates be- 
tween them, observing a just proportion and 
comparison. This distinction originated with 
Aristotle, (Eth. Nic. V.) See Fonbl. Eq. 
3; Toull. Droit Civil Fr. tit. prél. no. 7. 


In Norman French. Amenable to jus- 
tice. Kellam. 

In feudal law. Jurisdiction; judicial 
cognizance of causes or offenses. 


In common law. The title given in 
England to the judges of the king’s bench 
and the common pleas, and in America to 
the judges of the supreme court of the Unit- 
ed Status and of the appellate courts of many 
of the states. It is said that this word in 
its Latin form (justtéia) was properly ap- 
plicable only to the judges of common-law 
courts, while the term “judec” designated 
the judges of ecclesiastical and other courts. 
See Leg. Hen. E. §§ 24, 63; Co. Litt. 710. 

The same title is also applied to some of 
the judicial officers of the lowest rank and 
jurisdiction, such as police justices and jus- 
tices of tlie peace. 


JUSTICE AYRES, (or AIRES.) In 
Seotch law. Circuits made by the judges of 
the justiciary courts through the country, 
tor the distribution of justice. Bell. 


672 


JUSTICES OF APPEAL 


JUSTICE IN EYRE. From the old 
French word “etre,” @. ¢.,a journey. 
justices who in ancient times were sent by 
commission into various counties, to hear 
more especially such causes as were termed 
“pleas of the crown,” were called “justices 
in eyre.” They differed from justices in oyer 
and terminer, inasmuch as the latter were 
sent to one place, and for the purpose of try- 
ing only a limited number of special causes; 
whereas the justices in eyre were sent through 
the various counties, with a more indefinite 
and general commission. In some respects 
they resembled our present justices of assize, 
although thelr authority and manner of pro- 
ceeding differed much from them. Brown. 


JUSTICH OF THE PEACH. In 
American law. A judicial officer of in- 
ferior rank, holding a court not of record, 
and having (usually) civil jurisdiction of a 
limited nature, for the trial of minor cases, 
to an extent prescribed by statute, and for 
the conservation of the peace and the pre- 
liminary hearing of criminal complaints and 
the commitment of offenders. 

in English law. Judges of record ap- 


| pointed by the crown to be justices wibhin a 


certain district, (¢. g., a county or borough,) 
for Lhe conservation of the peace, and for the 
execution of divers things, comprehended 
within their commission and within divers 
statutes, coumitted te their charge. Stone, 
JHE Si 

JUSTICE SEAT. In English law. The 
principal court of the forest, held before the 


| chief justice in eyre, or clief itinerant judge, 


or his deputy; to hear and determine all Lres- 
passes within the forest, and all claims of 
franchises, liberties, and privileges, and all 
pleas and causes whatsoever therein arising. 
3 Bl. Comm. 72; 4 Inst. 291; 3 Steph. Comm. 
440. 


JUSTICEMENTS. Anold general term 
for all things appertaining to justice. 


JUSTICER. 
Blount. 


JUSTICES’ COURTS. Inferior tribu- 
nals, not of record, with limited jurisdiction, 
both civil and criminal, held by justices of 
the peace. There are courts so called in 
many of the states. 


JUSTICES OF APPEAL. The title 
given to the ordinary judges of the English 
court of appeal. The first of such ordinary 
Judges are the two foriner lords justices of 
appeal in chancery, and one other Judge ap- 


The old form of justice. 


Those — 


JUSTICES OF ASSIZE 


pointed by the crown by letters patent. Jud, 
Act 1875, § 4. 


JUSTICES OF ASSIZE. These justices, 
or, as they are sometimes called, “justices of 
nisi prius,” are judges of the superior En- 
glish conrts, who go on circuit into the va- 
rious counties of England and Wales for the 
purpose of disposing of such causes as are 
ready for trial at the assizes, See AssIZE. 


JUSTICES OF GAOL DELIVERY. 
Those justices who are sent with a commis- 
sion to hear and determine all causes apper- 
taining to persons, who, for any offense, 
have been cast into gaol. Part of their au- 
thority was to punish those who let to main- 
prise those prisoners who were not bailable 
by law, and they seem formerly to have been 
sent into the country upon this exclusive oc- 
casion, but afterwards had the same author- 
ity given them as the justices of assize. 
Brown. 


JUSTICES OF LABORERS. In old 
English law. Justices appointed to redress 
the frowardness of laboring men, who would 
either be idle or have unreasonable wages. 
Blount. 


JUSTICHS OF NISI PRIUS. In En- 
glish law. This title is now usually coupled 
with that of justices of assize; the judges of 
the superior courts acting on their circuits in 
both these capacities. 8 Bl. Comm. 58, 59. 


JUSTICHS OF OYER AND TER- 
MINER. Certain persons appointed by the 
king’s commission, among whom were usual- 
ly two judges of the courts at Westminster, 
and who went twice in every year to every 
county of the kingdom, (except London and 
Mididlesex,) and, at what was usually called 
the “assizes,” heard and determined all trea- 
sons, felonies, and misdemeanors. Brown. 


JUSTICES OF THH BENCH. The 
justices of the court of common bench or 
common pleas. 


JUSTICES OF THE FOREST. Inold 
English law. Officers who had jurisdiction 
over al] offenses committed within the forest 
against vert or venison. The court wherein 
these justices sat and determined such causes 
was called the “justice seat of the forest.” 
They were also sometimes called the “justices 
in eyre of the forest.” Brown. 


JUSTICHS OF THE HUNDRED. 
Hundredors; lords of the hundreds; they 
who had the jurisdiction of hundreds and 
held the hundred courts. 

AM. DICT. LAW—43 


673 


JUSTICIARY COURT 


JUSTICES OF THE JEWS. Justices 
appointed by Richard I. to carry into effect 
the laws and orders which he had made for 
regulating the money contracts of the Jews. 
Brown. 


JUSTICES OF THE PAVILION. In 
old English law. Judges of a pyepowder 
court, of a most transcendent jurisdiction, 
anciently authorized by the bishop of Win- 
chester, at a fair held on St. Giles’ hills near 
that city. Cowell; Blount. 


JUSTICES OF TRAIL-BASTON. In 
old English law. A kind of justices ap- 
painted by King Edward I. upon occasion of 
great disorders in the realm, during his ab- 
sence in the Scotch and French wars. They 
were akind of justices in eyre, with great 
powers adapted to the emergency, and which 
they exercised in asummary manner. Cowell; 
Blount. 


JUSTICEHSHIP. 
tice. 


Rank or office of 4 jus- 


JUSTICIABLE. Proper to be examined 
in courts of justice. 


JUSTICIAR. In old English law. A 
judge or justice, One of several persons 
learned in the law, who sat in the aula regis, 
and formed a kind of court of appeal in cases 
of difficulty. 


JUSTICIARIIT ITINERANTES, In 
English law. Justices in eyre, who formerly 
weni from county to county to administer 
justice. They were so called to distinguish 
them from justices residing at Westminister, 


who were called “justicii residentes.” Co. 
| Litt. 293. 
JUSTICIARII RESIDENTES. In En- 


glish law. Justices or judges who usually 
resided in Westminister. They were so 
called to distinguish them from justices in 
eyre. Co. Litt. 293. 


JUSTICIARY. Anoldname fora judge 
or justice. The word is formed on the anal- 
ogy of the Latin “justiciarius” and French 
“Fusticier.” 


JUSTICIARY COURT. Thechief critm- 
inal court of Scotland, consisting of five lords 
of session, added to the justice general and 
justice clerk; of whom the justice general, 
and, in his absence, the justice clerk, is presi- 
dent. This court has a jurisdiction over all 
crimes, and over the whole of Scotland. 
; Bell. 


JUSTICIATUS 674 JUSTUM NON EST, ETC. 
JUSTICIATUS. Judicature; preroga- | quia dilatioest quedam negatio. Justic 
tive. ought to be free, because nothing fs more 
‘ _, |iniquitous than venal justice; full, because 
JUSTICIES. In English law. <A writ 


directed to the sheriff, empowering him, for 
the sake of dispatch, to try an action in his 
county court for a larger amount than he has 
the ordinary power todo. It i 80 called be- 
cause it Isa commission to the sheriff to do 
the party justice, the word itself meaning, 
“You may do justice to -” 3 Bl. Comm. 
36; 4 Inst. 266. 


JUSTIFIABLE. Rightful; warranted or 
sanctioned by law; that which can be shown 
to be sustained by law; as justifiable homi- 
cide. 


JUSTIFIABLE HOMICIDE. Such as 
is committed intentionally, but without any 
evil design, and under such circumstances of 
necessity or duty ag render the act proper, 
and relieve the party from any shadow of 
blame; as where a sheriff lawfully executes 
a sentence of death upon a malefactor, or 
where the killing takes place in the endeavor 
to prevent the commission of a felony which 
could not be otherwise avoided, 


JUSTIFICATION. A maintaining or 
showing a sufficient reason in court why the 
defendant did what he is called upon to an- 
awer, particularly inan action of libel. A 
Jefense of justification is a defense showing 
the libel to be true, or in an action of assault 
showing the violence to have been necessary. 
See Steph. Pl. 184. 

In practice. The proceeding by which 
bail establish their ability to perform the un- 
dertaking of the bond or recognizance. 


JUSTIFICATORS. <A kind of compur- 
gators, (g. v.,) or those who by oath justified 
the innocence or oaths of others; as in the 
case of wager of law. 


JUSTIFYING BAIL consists in prov- 
ing the sufficiency of bail or sureties in point 
of property, etc. 

The production of bail in court, who there 
justify themselves against the execption of 
the plaintiff. 


JUSTINIANIST. 
studies the civil law. 


A civilian; one who 


JUSTITIA. Lat. Justice. 
tion, or the office of a judge. 


A jurisdic- 


Justitia debet esse libera, quia nihil 
iniquius venali justitia; plena, quia jus- 
titia non debet claudicare; et celeris, 


‘cellent virtue and pleasing to the Most High, 


justice ought not to halt; and speedy, be- 
cause delay is a kind of denial. 2 Inst. 56, 


Justitia est constans et perpetua vo- 
luntas jus suum cuique tribuendi. Jus- 
tice is a steady and unceasing disposition to- 
render to every man his due. Inst. 1,1, pr; 
Dig. ad, 1 JO: 


Justitia est duplex, viz., severe pu- 
niens et vere przveniens. 3 Inst. Epil. 
Justice is double; punishing severely, and 
truly preventing. 


Justitia est virtus excelleus et Altissi- 
mocomplacens. 4Inst.58. Justice is ex- 


Justitia firmatur solium. 8 Inst. 140. 
By justice the throne is established. 


Justitia nemini neganda est. Jenk. 
Cent. 178. Justice is to be denied to none. 


Justitia non est neganda non differ- 
enda. Jenk. Cent. 93. Justice is neither 
to be denied nor delayed. 


Justitia non novit patrem nec matrom; 
solam veritatem spectat justitia. Justice 
knows not father nor mother; justice looks 
at truth alone. 1 Bulst, 199. 


JUSTITIA PIEPOUDROUS. 
justice. Bract. 3330. 


JUSTITIUM. Inthecivil Jaw. A sus- 
pension or intermission of the administration 
of justice in courts; vacation time. Calvin. 


JUSTITIUM FACERE. To hold aplea 
of anything, 


Speedy 


JUSTIZA. In Spanishlaw. The name 
anciently given to a high judicial magistrate, 
or supreme judge, who was the ultimate in- 
terpreter of the laws, and possessed other 
high powers. 


JUSTS, or JOUSTS. Exercises between 
martial men and persons of honor, with 
spears, on horseback; different from tourna- 


j ments, which were military exercises between 


many men in troops. 24 Hen, VIII. ¢. 18. 


Justum non est aliquem antenatum 
mortuum facere bastardum, qui pro tota 
vita sua pro legitimo habetur. It is not 
just to make a basturd after his deuth one 
elder born who all his life has been accounted 
legitimate. 8 Coke, 101. 


JUXTA 


Lat. Near; following; accord- 


CONVENTIONEM. 
venant. Fleta, lib. 4, ¢. 16, § 6. 


FORMAM STATUTI. Ac- 
form of the statute. 


A RATAM. At or after the rate. 


Accord- 


675 


JUZGADOD 


JUXTA TENOREM SEQUENTEM. 
According to the tenor following. 2 Salk. 
417. A phrase used in the old books when 
the very words themselves referred to were 
set forth. Id.; 1 Ld. Raym. 415. 


JUZGADO, In Spanish law. The judi- 
ciary; the body of judges; the judges who 
concur in a decree, 


K. 


K. B, An abbreviation for “King’s 
Bench,” (q. v.) ‘ 


EKABANI. A person who, in oriental 
states, supplies the place of our notary public, 
All obligations, to be valid, are drawn by 
him; and he is also the public weigh-master, 
and everything of consequence ought to be 
weighed before him. Tne. Lond, 


KABOOLEAT. In Hindulaw. <A writ- 
ten agreement, especially one signifying as- 
sent, as the counterpart of a revenue leage, or 
the document in which a payer of revenue, 
whether to the government, the zamindar, or 
the farmer, expresses his consent to pay the 
amount assessed upon his land. Wils. Ind. 
Glogs. 


KATA. A key, kay, or quay. Spelman. 


KAIAGH, or KAIAGIUM. A whartf- 
age-due, 


KAIN. In Scotch law. Poultry render- 
able by a vassal to his superior, reserved in 
the lease as the whole or a part of the rent, 
Bell. 


KALALCONNA. A duty paid by shop- 
keepers in Hindostan, who retail spirituous 
liquors; also the place where spirituous liq- 
uors are sold. Wharton, 


KALENDA. In English ecclesiastical 
law. Rural chapters, or conventions of the 
rural deans and parochial clergy, which were 
formerly held on the calends of every month; 
hence the name. Paroch. Antig. 604. 


KALENDAR. An account of time, ex- 
hibiting the days of the week and month, the 
seasons, etc. More commonly spelled “cai- 
endar.” 


EALENDARIUM,. Inthecivyillaw. A 
ealendar; a book of accounts, memorandum- 
book, or debt-book; a book in which accounts 
were kept of moneys loaned out on interest. 
Dig. 32, 64, So called because the Romans 
used to let out their money and receive the 
interest on the calends of each month. Cal- 
yin. 


KALENDS. 


KARL, In Saxon and old English law. 
Aman; aservinginan. Buskeri, aseaman. 
Muskert, a house servant. Spelman. 


See CALENDS, 


676 


KEEP IN REPAIB 


EKARRATA. In old records. 
Cowell; Biount,: 


KAST. In Swedish law. Jettisen; a 
literal translation of the Latin “jactus,” 


KAST-GELD. In Swedish law. Con 
tribution for a jettison; average. 


KAY, A quay, or Key. 


KAZY. A Mohammedan judge or magis- 
trate in the Hast Indies, appointed originally 
by the court at Delhi, to administer justice 
according to their written law. Under the 
British authorities their judicial functions 
ceased, and their duties were confined to tha 
preparation and attestation of deeds, and the 
superintendence and legalization of marriage 
and other ceremonies among the Mohamme- 
dans. Wharton. 


KEELAGE. Therightto demand money 
for the privilega of anchoring a vessel ina 
harbor; also the money so paid, 


KEELHALE, KEKBLHAUL. Todraga 
person under the Keel ef aship by meana of 
ropes from the yard-arms, a punishment for- 
merly practiced in the British navy. Ene. 
Lond. 


KEELS, This word is applied, in Eng- 
land, to vessels employed in the carriage of 
coals. Jacob, 


KEEP. A strong tower or hold in the 
middie of any castle or fortification, wherein 
the besieged make their last efforts of de- 
fense, was formerly, in England, called a 
“keep;” und the inner pile within the castle 
of Dover, erected by King Henry II. about 
the year 1153, was termed the “ King’s Keap;” 
so ab Windsor, ete. It seems to be some- 
thing of the same nature with what is called 
abroad a “citadel.” Jacob. 


KEEP DOWW INTEREST. The ox- 
pression “keeping down interest” is famillar 
in legal instruments, and means the payment 
of interest periodically as it becomes due; but 
it does not includetle payment of all arrears 
of interest which may have become due on 
any security from the time when it was exe- 
cuted. 4 El. & Bi. 211. 


KEEP IN REPAIR, When a lessee is 
bound to keep the premises in repair, he must 
have them in repair at all times during the 
term; and, if they are at any time ont of ra- 


A cart-load. 


English law. 
_ warden of the forest) who had the principal 


‘KEEPER OF THE FOREST 

ir, he is guilty of a breach of the covenant. 
& Ald. 585. 

KEEPER OF THE FOREST. In old 


An officer (called also chief 


government of all things relating to the for- 
est, and the control of all officers belonging 
tothe same. Cowell; Blount. 


KEEPER OF THE GREAT SEAL. 


677 


In English law. A high officer of state, | 


through whose hands pass all charters, grants, 
and commissions of the king under the great 
seal. He is styied “lord keeper of the great 
seal,” and this oiJice and that of lord chan- 
cellor are united under one person: for the 
authority of the lord keeper and that of the 
lord chancellor were, by St. 5 Eliz. c, 18, de- 
clared to be exactly the same; and, like the 
lord chancellor, the lord keeper at the present 
day is created by the mere delivery of the 
king's great seal into his custody. Brown. 


KEEPER OF THE PRIVY SEAL. 
In English law. An officer through whose 
hands pass all charters signed by the king be- 
fore they come to the great seal. He is a 
privy councillor, and was anciently called 
“elerk of the privy seal,” but is now gener- 
ally called the “lord privy seal.” Brown, 


KEEPER OF THE TOUCH. The 
master of the assay in the English mint. 12 
Hen. VI. c. 14. 


KEEPING HOUSE. The English bank- 
rupt laws use the phrase “keeping house” to 
denote an act of bankruptey. It is commit- 
tel when a trader absents himself from his 
place of business and retires to his private 
residence to evade the importunity of credit- 
ors. The usual evidence of “keeping house” 
is refusal to see a creditor who has called on 
the debtor at his housa for money. Robs. 
Bankr. 119. 


KEEPING OPEN. To allow general 
access to one's shop, for purposes of traffic, 


isa violation of a statute forbidding him to | 


“keep open” his shop on the Lord’s day, al- 
though the outer entrances are closed. 11 
Gray, 308. 

To “keep open,” in the sense of such a 
law, implies a readiness to carry on the usual 
business in the store, shop, saloon, etc. 16 
Mich. 472. 


KEEPING TERM. In English law. A 
duty performed by students of law, consist- 
ing in eating a sufficient number of dinners 
in hall to make the term count for the pur- 


KEY 
pose of being called to the bar. Mozley & 
Whitley. 


KEEPING THE PEACH, Avoiding a 
breach of the peace; dissuading or prevent 
ing others from breaking the peace. 


KENILWORTH EDICT. An edict or 
award between Henry III. and those who 
had been in arms against him; so called be- 
cause made at Kenilworth Castle, in War- 
wickshire, anno 51 Hen. IIL, A. D. 1266, It 
contained a composition of those who had 
forfeited their estates in that rebellion, which 
composition was tive years’ rent of the es- 
tates forfeited. Wharton. 


KENNING TO A TERCEH. In Scotch 
law. The act of the sheriff in ascertaining 
the just proportion of the husband’s landa 
which belong to the widow in right of her 
terce or dower. Bell. 


KENTLAGE. Inmaritimelaw. <A per. 
manent ballast, consisting usually of pigs of 
iron, cast in a particular form, or other 
weighty material, which, on account of its 
superior cleanliness, and the small space oc- 
cupied by it, is frequently preferred to ordi- 
nary ballast. Abb. Shipp. 5, 


KENTREF. The division of acounty; a 
hundred in Wales. See CANTRED.. 


KENTUCKY RESOLUTIONS. A se 
ries of resolutions drawn up by Jefferson, and 
adopted by the legislature of Kentucky in 
1799, protesting against the “‘alien and sedi- 
tion laws,” declaring their illegality, an- 
nouncing the strict constructionist theory of 
the federal government, and declaring “nul- 
lification” to be “the rightful remedy,” 


KERF, The jagged end of astick of wood 
mude by the cutting. Pub. St. Mass. 1882, 
p. 1292. | 


KERHERE. <A customary cart-way; also 
a commutation for a customary carriage-duty. 
Cowell. 


KERNELLATUS. Fortified or embat- 
tled. Co. Litt. 5a, 


KERNES. 


KEY. <A wharf for the lading and unlad- 
ing of merchandise from vessels. More com- 
monly spelled “quay.” 

An instrament for fastening and opening 
a lock. 


This appears as an English word as early as the 
time of Bracton, in the phrase “cone et keye,” be 


Idlers; vagabonds. 


a 


ing applied to women at a certain age, to denote M 


the capacity of baving charge of household affairs. 
Bract. fol. 86b. See Conz anp Ker. 


KEY AGE 678 


KEYAGE. A toll paid for loading and 
unloading merchandise at a key or wharf. 


KEYS, in the Isle of Man, are the twenty- 
four chief commoners, who form the local 
legislature. 1 Steph. Comm. 99. 

In old English law. A guardian, ward- 
en, or keeper, 3 


EKEYS OF COURT. In old Scotch law. 
Certain officers of courts. See CLAVES CURLE. 


KEYUS. A guardian, warden, or keeper. 
Mon. Angi. tom. 2, p. 71. 


KHALSA. In Hindu law. An office of 
government in which the business of the 
revenue department was transacted under 
the Mohammedan government, and during 
the early period of British rule. Khalsa lands 
are lunds, the revenue of which is paid into 
the exchequer. Wharton. 


KIDDER. An engrosser of corn to en- 
hance its price. 


KIDDLE. In old English Jaw. A dam 
or open wear in ariver, with a loop or nar- 
row cut in it, accommodated for the laying 
of engines to catch fish. 2 Inst. 388; Blount. 


KIDNAPPING. The forcible abduction 
or stealing away of a man, woman, or child 
from their own country, and sending them 
into another. It is an offense punishable at 
the commen law by fine and imprisonnent. 
4 Bl, Comm. 219. 

In American law, this word is seldom, if 
at all, applied to the abduction of other per- 
sons than children, and the intent to send 
them out of the country does not seem tocon- 
stitute a necessary part of the offense, The 
term is said to include false imprisonment. 
2 Bish. Crim. Law, § 671. 


KILDEREIN. A measure of eighteen 
gallons. 
KILKETH. Anancient servile payment 


made by tenants in husbandry. Cowell. 


KILL, v. To deprive of life; to destroy 
the life of an animal. The word “homicide” 
expresses the killing of a human being. 


KILL, zn. A Dutch word, signifying a 
channel or bed of the river, and hence the 
river or stream itself. It is found used in 
this sense in descriptions of land in old con- 
veyances. I N.Y. 96. 


KILLYTH-STALLION. A custom by 
which lords of manors were bound to provide 
a stallion for the use of their tenants’ mares. 
Spelman. 


KING’S CHAMBERS, 


KIN. Relation or relationship by bleo 
or consanguinity. “The nearness of kin} 
computed according to the civil law.” % 
Kent, Comm. 413. 


KIND. Genus; generic clas3; descrip 
tion. See In KInp. 


KINDRED. Relatives by blood. “Kin- 
dred of the whole blood, preferred to kindred 
of the half blood,” 4 Kent, Comm. 404, 
notes, 


KING. The sovereign, ruler, or chief 
executive magistrate of a state or nation 
whose constitution is of the kind called 
“monarchical” is thus named if a man; if it 
be a woman, she is called “queen.” Tha 
word expresses the idea of one who rules 
sinyly over a whole people or has the highest 

| executive power; but the olfice may be either 
hereditary or elective, and the sovercignty of 
the king may or may not be absolute, accord- 
ing to the constitution of the country. 


KING-CRAFT. 


KING-GELD. 
(q. 2.) 


KING’S BENCH. The supreme court 
of common law in England, being so called 
because the king used formerly to sit there 

“in person, the style of the court being “coram 
tpso rege.” It was called the “queen's bench” 
in the reign of a queen, and during the pro- 
tectorate of Cromwell it was styled the “up- 
per bench.” It consisted of a chief justice 
and three puisne justices, who were by their 
office the sovereign conservators of the peace 
and supreme coroners of the land. It was 
a remnant of the eula regis, and waa not 
originally fixed to any certain place, but 
might follow the king’s person, thongh for 
some centuries past it usually sat at West- 
minster. It had a very extended jurisdiction 
both in criminal and civil causes; the former 
in what was called the “crown side” or 
“crown office,” the latter in the “plea side,” 
of thecourt. Itscivil jurisdiction was grad- 
ually enlarged until it embraced all species of 
personal actions. Since the judicature acts, 


The art of governing. 


A royal aid; an escuage, 


this court constitutes the “queen’s bench di- 
vision” of the “high court of justice.” See 
3 Bl. Comm. 41-43. 


KING’S CHAMBERS. Those portions 
of the seas, adjacent to the coasts of Great 
Britain, which are inclosed within headlands 
so as to be cut off from the open sea by im- 
aginary straight linea drawn from one prom- 
ontory ta another. 


KING’S (or QUEEN’S) COUNSEL. 
Barristers or serjsanis who have been called 
within the bar and selected Lo be the king’s 
eoinsel, They answer in some measure to 

the edvocati fisei, or advocates of the rev- 
énue, aniong the Romans. They must not 
be employed against the crown without spe- 
cial leave, which is, however, always granted, 
atacost of about nine pounds. 3 LI.Comm. 
27. 


KING’S EVIDENCE. An accomplice 
in a felony, who, on an implied promise of 
pardon if he fully and fairly discloses the 
truth, is admitted as evidence for Lhe crown 
against his accomplices. 1 Phil. Ev. 31. 


KING’S SILVER. In old English prac- 
tice, A fine due the king pro liventia con- 
cordandi, (tor leave to agree,) in the process 
of levyingafine. 5 Coke, 39,43; 2 Inst. 511; 
2 BL. Comm. 350, 


KING’S WIDOW. In feudal law. A 
widow of the king’s tenant in chief, who 
was obliged to take oath in chancery that 
she would not marry without the King’s 
leave. 


KINGDOM. A country where an officer 
called a “king” exercises the powers of gov- 
ernment, whether the same be absolute or 
limited. Woltf, Inst. Nat. § 994, In some 
kingdoms, the executive officer may be a 
woman, who is called a “queen.” 


KINGS-AT-ARMS. The principal her- 
ald of England was of old designated “king 
of the heralds,” a title which seems to have 
been exchanged for “king-at-arms” about the 
reign of Henry TV. ‘The kings-at-arms at 
present existing in England are three,—Gar- 
ter, Clarenceux, and Norroy, besides Bath, 
who is not a member of the college. Scot- 
land is placed under an officer called “Lyon 
King-at-Arms,” and Ireland is the province 
of one named “Ulster.” Wharton. 


KINSBOTE. In Saxon law. <A compo- 
sition or satisfaction paid for killing a kins- 
man, Spelman. 

KINSFOLK. Relations; those who are 
of the same family. 


KINSMAN. A man of the same race or 
family. 
KINSWOMAN. A femaie relation. 


KINTAL, or KINTLE. <A _ hundred 
pounds in weight. See QUINTAL. 


KINTLIDGE. A ship’s ballast, See 
KENTLAGE, 


KING’S COUNSEL 679 


KNIGHT MARSHAL 


KIPPER-TIME. In old English law. 
The space of time between the 3d of May and 
the Epiphany, in which fishing for salmon in 
the Thames, between Gravesend and Henley- 
on-Thames, was forbidden. Rot. Parl. 50 
Edw. I. 


KIRBW’S QUEST. In English law. 
An ancient record remaining with the re- 
membraneer of the exchequer, being an in- 
quisition or survey of all the lands in Eng- 
land, taken in the reign of Edward I. by John 
de Kirby, his treasurer, Blount; Cowell. 


KIREK-MOTE. InScotech law. <A meet 
ing of parishioners on church affairs. 


KIRK-OFFICER. The beadle of a church 
in Scotland. 


KIRK-SESSION, <A parochial chureh 
court in Scotland, consisting of the ministers 
and elders of each parish. 


KISSING THE BOOK. The ceremony 
of touching the lips to a copy of the Bible, 
used in adininistering oaths. It is the exter- 
nal symbol of the witness’ acknowledgment 
of the obligation of the oath. 


KIST. In Hindu law. A stated pay- 
ment; installment of rent. 


KLEPTOMANIA. A species (or symp- 
tom) of mania, eonsisting in an irresistible 
propensity to steal, See 10 Tex. App. 520, 


KWAVE. A rascal; a false, tricky, or 
deceitful person. The word originally meant 
a boy, attendant, or servant, but long-con- 
tinued usage has given it its present signifi- 
cation. 


KNAVESHIP. A portionof grain given 
to a mill-servant from tenants who were 
bound to grind their grain at such mill, 


KNIGHT. In English law. The next 
personal dignity after the nobility. Of 
knights there are several orders and degrees. 
The first in rank are knights of the Garter, 
instituted by Richard L and improved by 
Edward III. in 13844; next follows a knight 
banneret; then come knights of the Bath, in- 
stituted by Ilenry LV., and revived by Georga 
I.; and they were so called from a ceremony 
of bathing the night before their creation. 
The last order are Knights bachelors, who, 
though the lowest, are yet the most ancient, 
order of knighthood; for we find that King 
Alfred conferred this order upon his son Ath- 
elstan. 1 Bl. Comm. 403. 


EKNIGHT-MARSHAL. In Englishlaw. 
An officer in the royal household who has 


ENIGHT-SERVICE 


jurisdiction and cognizance of offenses com- 
mifted within the household and verge, and 
of all contracts made therein, a member of 
the household being one of the parties. Whar- 
ton. 


KNIGHT-SERVICE. A species of feud- 
al tenure, which differed very slightly from 
a pure and perfect feud, being entirely of a 
military nature; and it was the first, most 
universal, and most honorable of the feudal 
tenures. Tomuakea tenure by knight-service, 
a determinate quantity of land was necessary, 
which was called a “knight's fee,” (feodum 
militare,) the measure of which was esti- 
touted at 680 acres. Co. Litt. 69u; Brown. 


KNIGHT’S FER. The determinate 
quantity of land, (held by an estate of inher- 


itance,) or of annual income therefrom, which | 


was suilicient to maintain a knight. Every 
man holding such a fee was obliged to be 
knighted, and attend the king in his wars for 
the space of forty days in the year, or pay a 
fine (called “escuage”) for his non-compli- 
ance, ‘Che estate was estimated at £20 4 
year, or, according to Coke, 680 acres. See 
1 Bi. Comm. 404, 410; 2 Bl. Comm. 62; Co. 
Litt. 69a. 


KNIGHTENCOURT. A court which 
sised to be held twice a year by the bishop of 
Hereford, in England. 


KNIGHTENGUILD. An ancient guild 
or society formed by King Edgar. 


KNIGHTHOOD. Therank, order, char- 
acter, or dignity of a knight. 


KNIGHTS BACHELORS. In English 
law. The most ancient, though lowest, or- 
der of knighthood. 1 Bl. Comm. 404. 


KNIGHTS BANNERET. In English 
law. ‘Those created by the sovereign in per- 
son on the field of battle. They rank, gener- 
ally, after Knights of the Garter. 1 BI. 
Comm, 403, 


KNIGHTS OF ST. MICHAEL AND 
ST. GEORGE. <An English order of 
knighthood, instituted in 1818. 


KNIGHTS OF ST. PATRICK. Insti- 
tuted in Ireland by George III., A. D. 1763. 
They have no rank in England. 


KNIGHTS OF THE BATH. An or- 
der instituted by Henry [V., and revived by 
GeorgeI. They are so’ culled from the cere- 
mony formerly observed of bathing the night 
before their creation. 


680 


| senting counties or shires, in econtradistine 


KNOW ALL MEN 


ENIGHTS OF THE CHAMBE 
Those created in the sovereign’s chamber 
time of peace, not in the field. 2 Inst, 666, 


KNIGHTS OF THE GARTER. Oth 
erwise called “Knights of the Order of St 
George.” This order was founded by Rich- 
ard I., and improved by Edward HI., A. D, 
1344, They form the highest order of 
knights. 


KNIGHTS OF THE POST. A term 
for hireling witnesses. 


KNIGHTS OF THE SHIRE. In En- 
glish law. Members of parliament repre- 


tion to citizens or burgesses, wlio represent 
boroughs or corporations. A knight of the 
shire is so called, because, as the terms of 
the writ for election still require, it was 
formerly necessary that he should be a knight. 
This restricbion was coeval with the tenure 
of knight-service, when every man who fre- 
ceived a knight’s fee immediately of the 
crown was consirained te bea knight; but 
at present any person may be chosen to fill 
the ollice who is notan alien. The money 
qualification is abolished by 21 Vict. c. 26, 
Wharton. 


KWIGHTS OF THE THISTLE. A 
Scottish order of knighthood. This order is 
said to have been instituted by Achaius, king 
of Scotland, A. D. 819. The better opinion, 
however, is that if was instituted by James 
V. in 1534, was revived by James VIL. 
(James IL. of England) in 1687, and re-estab- 
lished by Queen Anne in 1703. They have 
no rank in England. Wharton. 


KNOCK DOWN. To assign to a bidder 
at an auction by a knock or blow of the 
hammer. Property is said to be “knocked 
down” when the auctioneer, by the fall of 
his hammer, or by any other audible or visi- 
ble announcement, signifies to the bidder that 
he is entilled to the property on paying the 
amouut of his bid, according to the terms of 
the sale. “Knocked down” and “struck off” 
are synonymous terms. 7 Hill, 439. 


KNOT. In seamen’s language, a “knot” 
is a division of the log-line serving to meas- 
ure the rate of the vessel's motion. The 
numberof knots which run off from the reel in 
half a minute shows the number of miles the 
yessel sails in an hour. Henee when a ship 
goes eight miles an hour she is said to go 
“eight knots.” Webster. { 


KNOW ALL MEN. In conveyancing. 
A form of public address, of great antiquity, | 


KNOWINGLY 


h many written instruments, 
s, letters of attorney, etc., still 


VINGLY. With knowledge; con- 
, intelligently. The use of this word 
dictment is equivalent to an aver- 
the defendant knew what he was 
}do, and, with such knowledge, pro- 
to do the act charged. 14 Fed. Rep. 


_ TOWLEDGE. The difference between 
knowledge” and “belief” is nothing more 
| in the degree of certainty. With re- 
i to things which make not a very deep 
ression on the memory, it may be called 
ai.” “Knowledge” is nothing more 
aman’s firm belief, The difference is 
tily merely in the degree, to be jud zed 
by the court, when addressed to the court; 
the jury, when addressed to the jury. 9 
?, 271, 

Knowledge may be classified, in a legal sense, 
as positive and imputed,—imputed, when the 
means of knowledge exists, known und accessible 
to the party, and capable of communicating posi- 
tive information. When there is knowledge, no- 
tice, as legally and technically understood, be- 
comes immaterial. Itis only material when, in the 
absence of knowledge, {t produces the same re- 
sults, However closely actual notice may, in many 
Instances, approximate knowledge, and construct 


681 


KYTH 


ive notice may be its equivalent in effect, there 
may be actual notice without knowledge; and, 
when constructive notice is made the test to de- 
termine priorities of right, it may fall far short of 
knowledge, and be sufficient. 81 Ala, 140,1 South, 
Rep. 773. 

Personal knowledge of an allegation in a plead- 
ing is a personal kuowledge of its truth or falsity; 
and, if the allegation is a negative ona, this neces- 
sarily includes a knowledge of the truth or falsity 
of the allegation denied. 18 Fed. Rep. 622. 


KNOWN-MEN. A title formerly given 
to the Lollards. Cowell. 


KORAWN. The Mohammedan book of 
faith.. It contains both ecclesiastical and 
secular laws. 

KUT-KUBALA. In Hindu law. A 


mortgage-deed or deed of conditional sale, 
being one of the customary deeds or instru. 
ments of security in India as declared by reg- 
ulution of 1806, which regulates the legal 
proceedings to be taken to enforce such a se- 
curity. It is also called “ Byebil-Wuffa.” 
Wharton. 


KYMORTHA. A Welsh term for a 
waster, rhymer, minstrel, or other vagabond 
who makes assemblies and collections. Barr- 
Ing. Ob. St. 360. 


KYTH. Kin or kindred. 


L. 


L. This letter, as a Roman numeral, 
stands for the number “fifty.” It is also 
used as an abbreviation for “law,” “liber,” 
{a book,) “lord,” and some other words of 
which it is the initial. 


L. 5. An abbreviation of “Long Quinto,” 
one of the parts of the Year Books. 


L. C. An abbreviation which may stand 
either for “Lord Chancellor,” “Lower Cana- 
da,” or “Leading Cases.” 


L. J. An abbreviation for “Law Judge,” 
also for “Law Journal.” 


L. L. (also L. Lat.) and L. F. (also L. 
Fr.) are used as abbreviations of the terms 
“Law Latin” and “Law French.” 


i Re 
ports.” 


L. 8. An abbreviation for “ Locus sigitili,” 
the place of the seal, t. e,, the place where a 
seal is to be alfixed, or a scroll which stands 
instead of a seal. 


LL. The reduplicated form of the abbre- 
viation “L,” for “law,” used asa plural. It 
is generally used in citing old collections of 
statute law; as “LL. Hen. I.” 


LL.B., LDL.M., and LL.D. Abbrevia- 
tions used to denote, respectively, the three 
academic degrees in law,—bachelor, master, 
and doctor of laws. 

LA. Fr. The. The definite article in 
the feminine gender. Occurs in some legal 
terms and phrases; as “Termes de la Ley,” 
terms of the law. 


LA. Fr. There. 
place; whereas. 


LA CHAMBRE DES ESTEILLES, 
The star-chamber. 


An abbreviation for “Law Re- 


La conscience est la plus changeante 
des régles. Couscicnce is the most change- 
able of rules. Bouy. Dict. 


La ley favour la vie d’un home. The 
law favors the life of aman. Yearb. M. 10 
Hen. VI. 51. 


La ley favour l’enheritance d’un home. 
The law favors the inheritance of a man. 
Yearb. M. 10 Hen. VI. 51. 


La ley voct plus tost suffer un mis- 
cheife que un inconvenience. The law 


An adverb of time and | 


LALORER 


will sooner suffer a mischief than an inco 
venience. Litt. § 231. It is holden for ar 
inconvenience that any of the maxims of the 
law should be broken, though a private man 
suffer loss. Co. Litt. 1528. 


LAAS. A net, gin, or snare. 


LABEL. Anything appended to a larger 
writing, as a codicil; a narrow slip of paper 
or parehment affixed to a deed or writ, in or- 
der to hold the appending seal. 

In the vernacular, the word denotes a 
printed or written slip of paper affixed to a 
manufactured article, giving information as 
to its nature or quality, or the contents of 4 
package, name of the maker, ete. 

A copy of a writ in the exchequer. 1 
Tidd, Pr, 156. 


LABINA. Imoldrecords. Watery land, 


LABOR. Work; toil; service. Contin- 
ued exertion, of the more onerous and infe- 
rior kind, usually and chiefly consisting in 
the protracted expenditure of muscular force, 
adapted to the accomplishment of specific uses 
ful ends. It is used in this sense in several 
legal phrases, such as “a count for work and 
labor,” “wages of labor,” ete. 

“Labor,” “business,” and “work” are not syn- 
onyms. Labor may be business, but it is not 
necessarily so; and business is not always labor. 
Labor implies toil; exertion producing weariness; 
manual exertion of a toilsome nature. Making an 
agreement for the sale of achattel is not within a 
prohibition of common labor upon Sunday, though 
itis (if by a merchant in his calling) within a pro- 
hibition upon business. 2 Ohio St. 387. 

LABOR A JURY. In old practice. To 
tainper with a jury; to endeavor to iniluence 
them in their verdict, or their verdict gener- 
ally. 


LABORARITS. Anancient writagainst 
persons who refused to serve and do labor, 
and who had no means of living; or against 
such as, having served in the winter, refused 
to serve in thesummer. Reg. Orig. 189. 


LABORER. One who, as a means of 
livelihood, performs work and labor for those 
who employ him. In English statutes, this 
term is generally understood to designate a 
servant employed in husbandry or manufact- 
ures, and not dwelling in the home of his 
employer. Wharton; Mozley & Whitley. | 

A laborer, as the word is used in the Pennsylva 
nia act of 1872, giving a certain preference of lien, 


LABORERS, STATUTES OF 


. 


683 


LAT 


{s one who performs, with his own hands, the con- | ed with a cargo which is neither in casks, 


tract which he makes with his employer. 82 Pa. | 
BL 409. j 

LABORERS, STATUTES OF. InEn- 
glish law. These are the statutes 23 Edw. 
Iil., 12 Rich. I., 5 Eliz. c. 4, and 26 & 27 
Viet. c. 125, making various regulations as 
to laborers, servants, apprentices, etc. 


LAG, LAK. 
100,000. The value of a luc of rupees is 
about £10,000 sterling. Wharton. 


LACE. A measure of land equal to one 


pole. This term is widely used in Cornwall. 
LACERTA. In old English law. A 
futhom. Co. Litt. 4. 


LACHES. Negligence, consisting in the 
omission of something which a party might 
do, and might reasonably be expected to do, 
towards the vindication or enforcement of 
his rights. The word is generally the syno-~ 
nym of “remissness,” “dilatoriness,” “un- 
reasonable or umexcused delay,” the op- 
posile of “vigilance,” and means a want of 
activity and diligence in making a claim or 
moving for the enforcement of a right (par- 
ticularly in equity) which will afford ground 


In Indian computation, | 


for presuming against it, or for refusing re- 
lief, where that is discretionary with the court, 


LACTA. L. Lat. In old English law. 
Defect in the weight of money; /aeck of 
weight. This word and the verb “lactare” 
are used in an assise or statute of the sixth 
year of King John. Spelman, 


LACUNA. In old records, A ditch or 
dyke; afurrow for a drain; a gap or blank 
in wriling. 


LACUS. In the civil law. A lake; a 
receptacle of water which is neverdry. Dig. 
48, 14, 1, 3. 

In old English law. Allay or alloy of 
silver with base metal. Fleta, lib. 1, ¢. 22, 
§ 6. 

LADA. In Saxon law. A purgation, or 
mode of trial by which one purged himself of 
An accusation; as by oath or ordeal. Spel- 
man. 

A water-course; a trench or canal for 
draining marshy grounds. In old English, a 
lade or load. Spelman. 

Tn old English law. 
a lade or lath. Cowell. 


LADE, or LODE. The mouth ofa river. 


LADEN IN BULK. A term of mari- 
time law, applied to a vessel which is freight- 


A court of justice; 


| than double value. 
$2094, 


boxes, bales, nor cases, but lies loose in the 
hold, being defended from wet or moisture 
by a number of mats and a quantity of dun- 
nage. Cargoes of corn, salt, etc., are usually 
80 shipped. 


LADY. In English law. The title be- 
longing to the wife of a peer, and {by court- 
esy) the wife of a baronet or knight, and also 
to any woman, married or sole, whose father 
was a nobleman of a rank not lower than 
that of earl. 


LADY-COURT. In English law. The 
court of a lady of the manor. 


LADY DAY. The 25th of March, the 
feast of the Annunication of the Blessed Vir- 
gin Mary. In parts of Ireland, however, they 
so designate the 15th of August, the festival 
of the Assumption of the Virgin. 


LADY’S FRIEND, The style of an of- 
ficer of the English house of commons, whose 
duty was to secure a suitable provision for 
the wife, when her husband soughta divorce 
by special act of parliament. The act of 1857 


| abolished parliamentary divorees, and this 


oflice with them. 


LHESA MAJESTAS. Lat. Leze-majes- 
ty, or injured majesty; high treason. It isa 
phrase taken from the civil law, and anciently 
meant any olfense against the king’s person 
or dignity. 


LA#STO ULTRA DIMIDIUM VEL 
ENORMIS. In Roman law. The injury 
sustained by one of the parties to an onerous 
contract when he had been overreached by 
the other to the extent of more than one-half 


| of the valuo of the subject-matter; e. g., when 


a vendor had not received half the value of 
property sold, or the purchaser had paid more 
Colq. Kom. Civil Law, 


LASIONE FIDEI, SUITS PRO. Suits 
in the ecclesiastical courts for spiritual of- 
fenses against conscience, for non-payment of 
debts, or breaches of civil contracts. ‘This 
attempt to turn the ecclesiastical courts into 
courts of equity was checked by the constitu- 
tions of Clarendon, A. D. 1164. 3 Bl. Comm, 
52. 

LASSIWERP. A thing surrendered into 
the hands or power of another; a thing given 
or delivered. Spelman. 


LAT. In old English law. 
class between servile and free. 


One of a 
Palgrave, i. 


| Ba4, 


LZATERE JERUSALEM 684 


LETERE JERUSALEM. Easter of- 
ferings, so called from these words in the 
hymn oftheday. They are also denominated 
“quadragesimalia.” Wharton. 


LATHE, or LATHE. A division or 
district peculiar to the county of Kent, Spel- 
man. Vi 

LAFORDSWIC. InSaxon law. <A be- 
traying of one’s lord or master. 


LAGA, L. Lat., from the Saxon “lag.” 
Law; a law. 


LAGAN. See Liaan. 


LAGE DAY. In old English law. <A 
law day; a time of open court; the day of the 
county court; a juridical day. 


LAGE-MAN. A lawful man; a good 
and lawful man. A juror. Cowell. 


LAGENA. L. Lat. Inold English law. 
A measure of ale. Feta, lib.2, ¢. 11. Said 
to consist of six sextaries. Cowell. 


LAGU. Inold English law. Law; also 
used to express the territory or district in 
which a particular law was in force, as Dena 
lagu, Merena lagu, etc. 


LAHLSLIT. <Abreach of law. Cowell, 
A mulct for an offense, viz., twelve “ores.” 


LAHMAN, or LAGEMANNUS. An 
old word for a lawyer. Domesday, I. 189. 


LAIA. A roadway in a wood. Mon. 
Angl. t. 1, p. 483. 


LAICUS. A layman. One who is not 
fn holy orders, or not engaged in the minis- 
try of religion. 


LAIRWITE, or LAIRESITE. A fine 
for adultery or fornication, anciently paid to 
the lords of some manors. 4 Inst. 206. 


LAIS GENTS. L. Fr. Lay people; a 
jury. 

LAITY. In Englishlaw. Those persons 
whodo not make a part of the clergy. They 
are divided into three states: (1) Civil, in- 
cluding all the nation, except the clergy, the 
army, and navy, and subdivided into the 7o- 
bility and the commonalty; (2) military; (3) 
maritime, consisting of thenavy. Wharton. 


LAKE. A large body of water, contained 
in a depression of the earth’s surface, and 
supplied from the drainage of a more or less 
extended area, Webster. 

The fact that there is a current from a 
aigher to a lower level does not make that a 
river which would otherwise be a lake; and 


LAND 


the fact that a river swells out into b 
pond-like sheets, with a current, does 
make that a lake which would otherwise ba 
ariver. 14 N. H. 477, : 


LAMANEUR. Fr. In French marine 
law. <A pilot. Ord. Mar. liv. 4, tit. 3. 


LAMB. A sheop, ram, or ewe under the 
age of one year. 4 Car. & P. 216. 


LAMBARD’S ARCHAIONOMIA, A 
work printed in 1568, containing the Anglo- 
Saxon laws, those of William the Conqueror, 
and of Henry I. 


LAMBARD’S EIRENARCHA, A 
work upon the ollice of a justice of the peacs, 
which, having gone through two editions, 
one in 1579, the other in 1581, was reprinted 
in English in 1599. 


LAMBETH DEGREE. In English law. 
A degree conferred by the Archbishop of 
Canterbury, in prejudice of the universities. 
3 Steph. Comm. 65; 1 Bl, Comm. 381. . 


LAME DUCK. A cant term on the 
stock exchange fora person unable to meet 
his engagements. 


LAMMAS DAY. The lst of August. 
It is one of the Scotch quarter days, and is 
what is called a “conventional term.” 


LAMMAS LANDS. Lands over which 
there is aright of pasturage by persons other 
than the owner from about Lammas, or reap- 
ing time, until sowing time. Wharton. 


LANA. Lat. In the civil law. Wool, 
See Dig. 32, 60, 70, 88.. 


LANCASTER. A county of England, 
erected into a county palatine in the reign 
of Edward III., but now vested in the crown. 


LANCETI. Infendallaw. Yassals who 
were obliged to work for their lord one day 
in the week, from Michaelmas to autumn, 
either with fork, spade, or flail, at the lord’s 
option. Spelman. 


LAND, in the most general sense, compre. 
hends any ground, soil, cr earth whatsoever; 
as meadows, pastures, woods, moors, waters, 
marshes, furzes, and heath. Co. Litt. 4a. 

The word “land” includes not only the 
soil, but everything attached to it, whether 
attached by the course of nature, as trees, 
herbage, and water, or by the hand of man, 
as buildings and fences. 1N. ¥.572; 2 BL 
Comm. 16, 17, 


Land is the solid material of the earth, whatever 
may be the ingredients of which it is composed, 


a 


LAND 


Cal. § 659. 

Philosophically, it seems more correct to say 
that the word “land” means, in law, as in the ver- 
nucular, the soil, or portion cf the earth’s crust; 
and to explain or justify such expressions as that 
“whoever owns the land owns the buildings above 
and the minerals below,” upon the view, not that 
these are within the extension of the term “land,” 
but that they are so connected with it that by rules 
of law they pass by a conveyance of the land. 
This view makes “land, as aterm, narrower in sig- 
nification than “realty,” though it would allow an 
instrument speaking of land to operate co-extensive- 
ly with one granting realty or real property by 
either of those terms. But many of the authori- 
ties use the expression “land” as including these 
incidents to the soil. Abbott, 


LAND CERTIFICATE. Upon the reg- 
istration of freehold land under the English 
land transfer act, 1875, a certificate is given 
to the registered proprietor, and similarly 
upon every transfer of registered land. 
registration supersedes the necessity of any 
further registration in the register counties. 
Sweet. 


LAND COURT. In Americanlaw. A 
court formerly existing in St. Louis, Mo., 
having a limited territorial jurisdiction over 
actions concerning real property, and suits 
for dower, partition, etc. 


LAND-GABEL. A tax or rent issuing 
out of land. 
a penny for every house. This fand-yatel, 
or land-gavel, in the register of Domesday, 
was a quit-rent for the site of a house, or the 
land whereon it stood; the same with what 
we now call “ground-rent.” Wharton. 


“LAND-POOR.” By this term is gen- 
erally understood that a man has a great deal 
of unproductive land, and perhaps is obliged 
to borrow money to pay taxes; but a man 
“Jand-poor” may be largely responsible. 46 
Mich. 397, 9 N. W. Rep. 445. 


LAND-REEVE. A person whose busi- 
ness it is to overlook certain parts of a farm 
or estate; to attend not only to the wouds 
and hedge-timber, but also to the state of the 
fances, gates, buildings, private roads, drift- 
ways, and water-courses; and likewise to 
the stocking of commons, and encroachments 
of every kind, as well as to prevent or detect 
waste and spoil in general, whether by the 
tenants or others; and to report the same to 
the manager or land steward. Mne. Lond. 


LAND STEWARD. A person who 
overlooks or has the management of a farm 
or estate. 


This | 


Spelrnan says it was originally | 


685 


whether soll, rock, or other substance. Civil Code | 


LANDCHEAP 


LAND TAX. A tax laid upon the legal 
or beneficial owner of real property, and ap- 
portioned upon the assessed value of his 
land. 


LAND TENANT. The person actually 
in possession of land; otherwise atyled the 
“terre-tenant.” 


LAND TITLES AND TRANSFER 
ACT. An English statute (38 & 39 Vict. c. 
87) providing for the establishment of a reg- 
istry for titles to real property, and making 
sundry provisions for the transfer of lands 
and the recording of the evidences therof. 
It presents some analogies to the recording 
laws of the American states. 


LAND WAITER. In Englishlaw. An 
officer of the custom-house, whose duty is, 
upon landing any merchandise, to examine, 
taste, weigh, or measure it, and to take an 
account thereof. In some ports they also 
execute the office of a coast waiter. They 
are likewise occasionally styled “searchers, ” 
and are to attend and join with the patent 
searcher in the execution of all cockets for 
the shipping of goods to be exported to far- 
eign parts; and, in cases where drawbacks 
on bounties are to be paid tu the merchant 
on the exportation of any goods, they, as 
well as the patent searchers, are to certify 
the shipping thereof on the debentures. Enc, 
Lond. 


LAND-WARRANT. The evidence 
which the state, on good consideration, givea 


| that the person therein named is entitled to 


the quantity of land therein specilied, the 
bounds and description of which the owner 
of the warrant may fix by entry and survey, 
in the section of country set apart for its lo- 
cation and satisfaction. 6 Yerg. 205, 


LANDA. An open field without wood; 
a lawnd or lawn. Cowell; Blount. 


LANDAGENDE, LANDHLAFORD, 
or LANDRICA. In Saxon law. A pro 


prietor of land; lord of the soil. Anc. Insi. 
Eng. 
LANDBOC. In Saxon law. A charter 


or deed by which lands or tenements were 
given or held. Spelman; Cowell; 1 Reeve, 
Eng. Law, 10, 


LAWNDCHEAP. Inold Englishlaw. An 
ancient customary tine, paid either in money 
or cattle, ab every alienation of land lying 
within some manor, or within the liberty of 
some borough. Cowell; Blount. 


LANDEA 


LANDEA. Inold Englishlaw. A diteh 
or trench for conveying water from marshy 
grounds. Spelman. 


LANDED. Consisting in real estate or 
land; having an estate in land. 


LANDED ESTATES COURT. The 
court whieh deals with the transfer of land 
and the creation of title thereto in Ireland. 


LANDED PROPRIETOR. Any person 
having an estate in lands, whether highly 
improved or not. 10 La. Ann. 677, 


LANDEFRICUS. 
the soil. 


LANDEGANDMAN. Sax. Inold En- 
glish Jaw, A kind of customary tenant or 
inferior tenant of a manor. Spelman. 


LANDGRAVE. A name formerly given 
to those who executed justice on behalf of 
the German emperors, with regard to the 
internal policy of the country. It was ap- 
plied, by way of eminence, to those sovereign 
princes of the empire who possessed by inher- 
itance certain estates called “land-gravates,” 
of which they received investiture from the 
emperor. Ene, Lond. 


LANDIMER. In old Scotch law. 
measurer of land. Skene, 


LANDING. A place on a river or other 
navigable water for lading and unlading 
goods, or for the reception and delivery of 
passengers; the terminus of a road on a 
river or other navigable water, for the use of 
travelers, and the loading and unloading of 
goods. 1 Strob. 111. 

A place for loading or unleading boats, 
but not a harbor for them. 74 Pa, St. 8738, 


LANDIRECTA. In Saxon law, Serv- 
fees and duties laid upon all that held land, 
ineluding the three obligations called “trizo- 
da necessitus,” (gy. v.,) quasi land rights. 
Cowell. 


LANDLOCKED. An expression some- 
times applied to a piece of land belonging to 
one person and surrounded by land belonging 
to other persons, so that {t cannot be ap- 
prouched except over their land. L. R. 16 
Ch. Div. 798; Sweet. 


LANDLORD. Heof whom lands or ten- 
ements are holden. He who, being the own- 
er of an estate in land, has leased the same 
for a term of years, on a rent reserved, to an- 
other person, called the “tenant.” 

When the absolute property in or fee-sim- 


A landlord; a lord of 


A 


686 


LANDWARD 


ple of the land belongs to a landlord, he ts 
then sometimes denominated the “ground 
landlord,” in contradistinection to such a ons 
as is possessed only of a limited or particular 
interest in land, and who himself holds under 
a superior landlord. Brown. 


LANDLORD AND TENANT. A phrase 
used to denote the familiar legal relation ex- 
isting between lessor and lessee of real estate, 
The relation is contractual, and is constituted 
by a lease (or agreement therefor) of lands 
for a term of years, from year to year, for 
life, or at will. 


LANDLORD’S WARRANT. A distress 
warrant; a warrant from a landlord to levy 
upon the tenant’s goods and chattels, and seil 
the same at public sale, to compel payment 
of the rent or the observance of some other 
stipulation in the lease. 


LANDMARK. A monument or erection 
set up on the boundary line of two adjoining 
estates, tox such boundary. Theremoving 
of a landmark is a wrong for which an action 
lies. 


LANDS. Thisterm, the plural of “land,” 
is said, at common law, fo be a word of less 
extensive signification than either “tene- 
ments” or “hereditaments.” But in some 
of the states if has been provided by statute 
that it shall include both those terms. 


LANDS CLAUSES CONSOLIDA- 
TION ACTS. The name given to certain 
English statutes, (8 Vict. c.8, amended by 28 
& 24 Vict. c. 106, and 32 & 338 Vict. c. 18,) 
the object of which was te provide legislativa 
clauses ina convenient form for incorporation 
by reference in future special aets of parlia- 
ment for taking lands, with or without the 
consent of their owners, for the promotion of 
railways, and other public undertakings. 
Mozley & Whitley. 


LANDS, TENEMENTS, AND HERE- 
DITAMENTS. The technical and most 
comprehensive description of real property, 
as “voods and chattels” is of personalty. 
Williams, Real Prop. 3. 


LANDSLAGH. In Swedish law. A 
body of common law, compiled about the 
thirteenth century, out of the particular eus- 
toms of every province; being analogous to 


the common faw of England. 1 BI. Comm. 
LANDWARD. In Scotch law. Rural 


7 Bell, App. Cas. 2 


ia 


LANGEMAN 


LANGEMAN. A lord of amanor. 1 
Inst, o. 


LANGEOLUM. Anundergarment made 
of wool, formerly worn by the monks, which 
teached to their knees. Mon. Angl. 419. 


LANGUAGE. Any meansof conveying 
or communicating ideas; specifically, human 
speech, or the expression of ideas by written 
cliaracters, ‘The letter, or grammatical im- 
port, of a document or instrument, as distin- 
guished from its spirit; as “the language of 
the statute.” 


LANGUIDUS, In practice. The name 
of a return made by the sheriff when a de- 
fendant, whom he has taken by virtue of pro- 
cess, is 80 dangerously sick that to remove 
him would endanger his life or health 3 
Chit. Pr. 249, 358. 


LANIS DE CRESCENTIA WALLIA 
TRADUCENDIS ABSQUE CUSTUMA, 
ete. An ancient writ that lay to the cus- 
tomer of a port to permit one to pass wool 
without paying custom, he having paid it be- 
fore in Wales. Reg. Orig. 279. 


LANO NIGER. A sort of base coin, 
formerly current in England. Cowell. 


LANZAS. In Spanish law. A commu- 
tation in money, paid by the nobiles and high 
officers, in lieu of the quota of soldiers they 
might be required to furnish in war. 


LAPIDATION. 
person to death, 


LAFPIDICINA. Lat. In the civil law. 
A stone-quarry. Dig. 7, 1, 9, 2. 


LAPILLI. Lat. Inthe civillaw. Pre- 
cious stones, Dig. 34, 2, 19, 17. Distin- 
guished from “gems,” (gemme.) Id. 


LAPIS MARMORIUS. A _ marble 
stone about twelve feet long and three feet 
broad, placed at the upper end of Westmin- 
ster Hall, where was likewise a marble chair 
erected on the middle thereof, in which the 
English sovereigns anciently sat at their cor- 
onation dinner, and at other times the lord 
zhancellor. Wharton. 


LAPSE, ». 
lently, or by degrees. 


The act of stoning a 


To glide; to pass slowly, si- 
To slip; to deviate 


from the proper path. Webster. To fall or 
fail. 
LAPSE, n. In ecclesiastical law. The 


transfer, by forfeiture, of a right to present 
or collate to a vacant benefice from a person 
vested with such right to another, in conse- 


687 


LARCENY 


quence of some act of negligence by the for- 
mere FAy).Partdsd. * 

In the law of wills. The failure of a tes- 
tamentary gift in consequence of the death of 
the devisees or legiutee during the life of the 
testator. 

In criminal proceedings, “lapse” is used, 
in England, in tle same sense as “abate” in 
ordinary procedure; #4. ¢., to signify that the 
proceedings came to an end by the death of 
one of the parties or some other event. 


LAPSE PATENT. A patent for land 
issued in substitution foran earlier patent to 
the same land, which was issued to another 
party, but has lapsed in consequence of his 
neglect to avail himself of it. 1 Wash. (Va.) 
39. 


LAPSED DEVISE. A devise which fails, 
or takes no effect, in consequence of the 
death of the devisee before the testator; the 
subject-matter of it being considered as not 
disposed of by the will. 1 Steph. Comm. 559, 
4 Kent, Comm. 541. 


LAPSED LEGACY. Where the legaten 
dies before the testator, or before the legacy 
is payable, the bequest is said to lapse, a> it 
then falls into the residuary fund of the es- 


| tate. 


LARCENOUS. Having the charater of 
larceny; as a ““larcenous taking.” CGontem- 
plating or intending larceny; as a “Isrcenous 
purpose.” 


LARCENY. In criminal law. The 
wrongful and fraudulent taking and earry- 
ing away by one person of the mere personal 
goods of another from any place, with a fe- 
Jonious intent to convert them to his (the 
taker’s) use, and make them his property, 
without the consent of the owner, 2 East, 
P. C. 553; 4 Wash. C, C. 700. 

The felonious taking and carrying away of 
the personal goods of another. 4 Bl. Comm. 
229. The unlawtui taking and carrying away 
of things personal, with intent to deprive the 
right owner of the same. 4 Steph. Comm. 
152. The felonious taking the property of 
another, without his consent and against his 
will, with intent to convert it to the use of 
the taker. 2 Leach, 1089. 

The taking and removing, by trespass, of 
personal property which the trespasser knows 
to belong either generaily or specially to an- 
other, with the intent to deprive such owner 
of his ownership therein; and, perhaps it 
should be added, for the sake of sume advan- 
tage to the trespasser,—a proposition on 


LARCENY 688 


which the decisions ara not harmonious. 2 
Bish. Crim. Law, §§ 757, 758. 

Larceny is the taking of personal property, ac- 
eomplished by frand or stealth, and witn intent to 
deprive another thereof. Pen. Code Dak. § 580. 

Larceny is the felonious stealing, taking, carry- 
{ug, leading, or driving away the personal property 
of another. Pen. Code Cal § 454. 

Larceny is sometimes divided into “simple” 
and “compound” or “mixed” larceny; the 
former term applying to cases of simple theft; 
the latter to cases of stealing attended with 
some recognized circumstances of aggrava- 
tion, such as larceny from aship or wharf, or 
from a dwelling-house in the day-time, or 
from the person. 

Lareeny was also divided into “grand” and 
“petit” lareeny, the distinction turning on an 
arbitrary division of the value of the goods 
stolen. This division is now abolished in 
England (7 & 8 Geo. [V.c. 29, § 2) and in 
many of the United States, but still subsists 
in some jurisdictions. 

For the distinction between “larceny” and 
“burgiary,” “extortion,” “false pretenses, ” 
and “robbery,” see those titles. 


LARCENY BY BAILEE. In Pennsyl- 
yanialaw. The crime of larceny committed 
where “any person, being a bailee of any 
property, shall fraudulently take or convert 
the same to his own use, or to the use of any 
other person except the owner thereof, al- 
though he shall not break bulk or otherwise 
determine the bailment.” Brightly’s Purd. 
Dig. p. 436, § 177, 


LARDARIUS REGIS. 
erer, or clerk of the kitchen. 


LARDING MONEY. In the manor of 
Bradford, in Wilts, the tenants pay to their 
lord a small yearly rent by this name, which 
is said to be for liberty to feed their hogs with 
the masts of the lord’s wood, the fat of a hog 
being called ‘lard;” or it may be acommuta- 
tion for some customary service of carrying 
salt or meat to the lord’s larder. Mon. 
Angl. t. 1, p. 821. 


LARGE. LFr. 
“estreyie,” strait or strict. 
Britt. e. 34, 


LARONS. Inold Englishlaw. Thieves. 


The king’s lard- 
Cowell. 


Broad; the opposite of 
Pures et larges. 


LAS PARTIDAS. In Spanish law. 
The name of a code of laws, more fully de- 
scribed as “Zag Siete Partidas,” (“the sev- 
wn parts,” from the number of its divisions,) 
which was compiled under the direction of 
Alphonso X., about the year 1250. Its sources 


LASTAGE 


were the customary law of all the prov 
inces, the canon law ag there administered, 
and (chiefly) the Romau law. This werk 
has always been regarded as of Lhe highest 
authority in Spain and in those countries 
and states which have derived their jurispru- 
dence from Spain. 


LASCAR. A native Indian sailor; the 
term is also applied to tent pitchers, inferior 
artillery-men, and olhers. 


LASCIVIOUS CARRIAGE, In Con- 
necticut. A term including those wanton 
acts between persons of different sexes that 
flow trom the exercise of lustful passions, 
and which are not otherwise punished as 
crimes against chastity and public decency. 
2 Swift, Dig, 343. It includes, also, inde- 
cent acts by one against the will of another, 
5 Day, 81. 


LASHITE, or LASHLITE, A kind of 
forfeiture during the government of the 
Danes in England. Enc. Lond. 


LAST, in old English law, signifies a 
burden; also a measure of weight used for 
certain commodities of the bulkier sort. 


LAST COURT. A court held by tha 
twenty-four jurats in the marshes of Kent, 
and summoned by the bailiffs, whereby or- 
ders were made to lay and levy taxes, impose 
penalties, ete., for the preservation of the 
said marshes. Ene. Lond. 


LAST HEIR. In English law. He to 
whom lands come by escheat for want of 
lawful heirs; that is, in some cases, the lord 
of whom the lands were held; in others, the 
sovereign. Cowell. 


LAST RESORT. A court from which 
there is no appeal is called the “court of last 
resort.” 


LAST SICKNESS. That 
which a person dies is so calied. 


LAST WILL. This term, according to 
Lord Coke, is most commonly used where 
lands and tenements are devised, and “testa- 
ment” where it concerns chattels. Co. Litt. 
lille. Both terms, however, are now gen- 
erally employed in drawing a will either of 
lands or chattels. 


LASTAGE. A custom exacted in some 
fairs and markets to carry things bought 
whither one will. But it is more accurately 
taken for the ballast or lading of a ship. 
Also custom paid for wares sold by the last, 
as herrings, pitch, ete. Wharton. 


illness of 


e 


LATA CULPA 


LATA CULPA. Lat. In the law of 
bailment. Gross fault or neglect; extreme 
negligence or carelessness, (nimia negligen- 
tia.) Dig. 50, 16, 213, 2. 


Lata culpa dolo eequiparatur. 
negligence is equivalent to fraud. 


Gross 


LATCHING. 


LATE. 
now dead. 17 Ala. 190. Formerly; recent- 
ly; lately. 


“LATELY.” 


An under-ground survey. 


This word has been held 


to have “a very large retrospect, as we say. 


‘lately deceased’ of one dead ten or twenty 
years.” Per Cur. 2 Show. 294. 


LATENS. Lat. Latent; hidden; not ap- 
parent. See AmBIGUITAS. 


LATENT. Hidden; concealed; that does 
not appear upon the face of a thing. 


LATENT AMBIGUITY. Anambigui- 
ty which arises not upon the words of the 
will, deed, or other instrument, as looked at 
in themselves, but upon those words when 
applied to the object or to the subject which 
they describe. The term is opposed to the 
phrase “patent ambiguity.” The rule of 
law is that extrinsic or parol evidence is ad- 
missible in all cases to remove a latent am- 
biguity, but in no case to remove a patent 
one. Brown. 


LATENT DEED. A deed kept fortwen- 
ty years or more in & man’s scrutoire or 
atrong-box. 7 N. J. Law, 177. 


LATENT DEFECT. A defect in an 
article sold, which is known to the seller, 
but not to the purchaser, and is not discover- 
able by mere observation. See21N. Y. 552. 


LATERA. In old records. 
eompanions; assistants. Cowell. 


LATERAL RAILROAD. A lateral 
road is one which proceeds from some point 


Sidesmen; 


Defunct; existing recently, but 


689 


| 


on the main trunk between its termini; it is | 


but another name for a branch road, both be- 
ing a part of the main road. 14 Ill. 273. 


LATERAL SUPPORT. The right of 
lateral and subjacent support is that right 
which the owner of land has to have his land 
Supported by the adjoining land or the soil 
beneath. 27 Grat.77; 19 Barb. 380; 2 AMen, 
131; 12 Amer. & Eng. Enc. Law, 933. 


LATERARE. Toliesideways, in opposi- 
tion to lying endwuays; used in descriptions of 
lands. 

AM. DICT. LAW—44 


LATITAT 


LATH, LATHE. The name of an an- 
cient civil division in England, intermediate 
between the county or shire and the hundred. 
Said to be the same as what, in other parts 
of the kingdom, was termed a“rape.” 1 Bl, 
Comm. 116; Cowell; Spelman, 


LATHREVE. An officer under the Sax- 
on government, who had authority over a 
lathe. Cowell; 1 BI. Comm. 116. 


LATIFUNDIUM. In the civil law. 
Great or large possessions; a yreat or large 
field; acommon. A great estate made up of 
Smaller ones, (fundis,) which began to be 
common in thé latter times of the empire. 


LATIFUNDUS. A possessor of a large 
estate made up of smaller ones. Du Cange. 


LATIMER. <A word used by Lord Coke 
in the sense of an interpreter, 2 Inst. 515. 
Supposed to be a corruption of the French 
“latinier,” or “latiner.” Cowell; Blount. 


LATIN. The language of the ancient 
Romans. There are three sorts of law Latin: 
(1) Good Latin, allowed by the grammarians 
and lawyers; (2) false or incongruous Latin, 
which in times past would abate original 
writs, though it would not make void any 
judicial writ, declaration, or plea, ete.; (3) 
words of art, known only to the sages of the 
law, and not to grammarians, called “Law- 
yers’ Latin.” Wharton. 


LATINARIUS. An interpreter of Latin. 


LATINI JUNIANI. Lat. In Roman 
law. Aclass of freedmen (lidertini) interme- 
diate between the two other classes of freed- 
men called, respectively,“ Cives Romani” and 
“Dediticii.” Slaves under thirty years of 
age at the date of their manumission, or man- 
umitted otherwise than by vindicta, census, 
or testamentum, or not the quiritary prop- 
erty of their manumissors at the time of 
Inanumission, were ealled “ZLatint.” By 
reason of one or other of these three defects, 


| they remained slaves by strict law even after 


their manumission, but were protected in 
their liberties first by equity, and eventually 
by the Zexw Junia Norbane, A. D. 19, from 
which law they tovk the name of “Juniané” 
in addition to that of “Latini.” Brown, 


LATITAT. In old English practice. A 
writ which issued in personal actions, on the 
return of non est inventus to a bill of Mid- 
dlesex; so called from the emphatic word in 
its recital, in which it was “testified that the 
defendant lurks [laiitet] and wanders about” 


) 


LATITATIO 690 


in the county. 3Bl. Comm. 286. Abolished 
by St. 2 Wm. TY. ec. 39. 

LATITATIO. 
English practice, 
concealment of the person. 
Bract. fol. 126. 


LATOR. A bearer; a messenger. 
LATRO. In the civil and old Engtish 


law. <A robber. 
lib. 1, c. 88,§ 1. A thief. 


LATROCINATION. The act of rob- 
bing; a depredation. 


LATROCINIUM. The prerogative of 
adjudging and executing thieves; algo larceny; 
theft; a thing stolen, 


LATROCINY. Larceny. 


In the civil law and old 
A lying hid; lurking, or 
Dig. 42, 4, 7, 5; 


LATTER-MATH. A second mowing; 
the aftermath, 
LAUDARE. In the civil law. To 


hame; to cite or quote; to show one’s title 
or authority. Calvin. 

In feudal law. To determine or pass 
upon judicially. Laudamentum, the finding 
or award of ajurm 2 Bl. Comm. 285, 


LAUDATIO. Jn Roman iaw. Testi- 
mony delivered in court concerning an ac- 
cused person’s good behavior and integrity of 
life. It resembled the practice which pre- 
yails in our trials of calling persons to speak 
toa prisoner’s character. The least number 
of the /zudateres among the Romans was 
ten, Wharton. 


LAUDATOR. An arbitrator; a witness 
to character, 


LAUDEMEO. InSpanishlaw. The tax 
paid by the possessor of land held by quit-rent 
or emphyteusis to the owner of the estate, 
when the tenant alienates his right in the 
property. Escriche. 


LAUDEMIUM. In the civil law. A 
sum paid by a new emphyteuta (q. v.) who 
acqtiires the enphyteusis, nob as heir, but as 
a singular successor, whether by gift, devise, 
exchange, or sale. It was a sum equal to 
the fiftieth part of the purchase money, paid 
to the dominus or proprietor for his aceept- 
ance of thenewemphyteuta. Mackeld. Kom, 
Law, § 828. Called, in old English law, 
“acknowledgment money.” Cowell, 


LAUDUM. An arbitrament or award. 
In old Scoteh law. Senteuce or judg- 


ment; dome or dvom. 1 Pite. Crim. Tr. pt. 
2, Pp. 8. 


Dig. 50, 16, 118; Fleta, | 


LAW 


LAUGHE. Frank-pledge. 2 Reeve, Eng. 
Law, 17. 


LAUNCHGAY. A kind of offensi re 
Weapon, now disused, and prohibited by 7 
Rich. Livers. 


LAUNCH. 1. The act of launching a 
vessel; the movement of a vessel from the 
land into the water, especially the sliding on 
ways from the stocks on which it is built, 

2. A boat of the largest size belonging to 
a ship of war; an open boat of large aize used 
in any service; a lighter. 


LAUREATE. In English law. An of- 
ficer of {lie household of the sovereign, whose 
bisiness formerly consisted only in compos- 
ing an ode annually, on the sovereign's birth» 
day, and on the new year; sometimes also, 
though rarely, on occasion of any remark. 
able victory. 


LAURELS. Pieces of gold, eccined in 
1619, with the king’s bead laureated; hence 
the name. 


LAUS DEO. Lat. Praise be to God. 
An old heading to bills of exchange. 


LAVATORIUM. A laundry or place to 
wash in; a place in the porch or entrance of 
cathedral churches, where the priest and 
other officiating ministers were obliged to 
wash their hands before they proceeded to 
divine service. 


LAVOR NUEVA. InSpanishlaw. A 
new work, Las Partidas, pt. 3, tit. 32,11. 


LAW. 1. That which is laid down, or- 
dained, or established. A, rule or method 
according to which phenomena or actions co 
exist or follow each other. 

2. A system of principles and rules of hu- 
man conduct, being the aggregate of thosu 
commandments and principles which are 
either prescribed or recognized by the poy- 
erning power in an organized jural society as 
its willin relation to the conduct of the mem- 
bers of such society, and which it undertakes 
to maintain and sanction and to use as the 
criteria of the actions of such members, 

«Law” is a solemn expression of legislative wil 
Itorders aud permits and forbids. It announces 
rewards and punishments. Its provisions gener. 
ally relate not to solitary or singular vases, but to 
what pusses in theordinary course of affairs, Civil 
Code La. arts. 1, 2. 

“Law,” without an article, properly implies a 
science or system of principles or rules of human 
conduct, answering to the Latin “fus;” as when 
it is spoken of as a subject of study or practice, 
In this seuse, it includes the decisions of courts of 
justice, as well as acts of the legislature. The 


LAW 


of a competent court, until reversed or 
superseded, is law, as much as any stat- 
Indeed, it may happen that astatute may be 
in violation of law, that is, of the funda- 
ae or constitution of a state; anditis the 
ppative of courts in such cases to declare it 
or, in other words, to declare it not to be law. 


Aruleof civil conduct prescribed by the 
ipreme power ina state. 1 Steph. Comm. 
; Civil Code Dak. § 2; Vol. Code Cal. 
§ 4466. 

A “law,” in the proper sense of the term, 
4s a general rule of human action, taking 
eognizance only of external acts, enforced by 
‘adeterminate authority, which authority is 
human, and among human authorities is that 
which is paramount in a political socicty. 
Holl. Jur. 36, 

A “law,” properly so called, is a command 
which obliges a person or persons; and, as 
distinguished from a particular or occasional 
command, oblices generally to acts or for- 
bearances of aclass. Aust. Jur. 

A rule or enactment promulgated by the 
legislative authority of a state; a long-estab- 
lished local custom which has the foree of 
such an enactment. 10 Pet. 18. 

4, Inanother sense the word signifies an en- 
actment; a distinct and complete act of posi- 
tive law; a statute, as opposed to rules of civil 
conduct deduced from the custeums of the 
people or judicial precedents. 

When the term “law” is used to denote enact- 
ments of the legislative power, itis frequently con. 
fined, especially by English writers, to permanent 
rules of civil conduct, as distinguished from other 
acts, such as a divorce act, an appropriation bill, 
an estates act. Rep. Eng. St. L. Com. Mar. 1856. 

Historically considered. With refer- 
ence to its origin, “law” is derived either 
from judicial precedents, from legislation, or 
from custom. That part of the Jaw whichis 
derived from judicial precedents is called 
f “common law,” “equity,” or “admiralty,” 

“probate,” or “ecclesiastical law,” according 
to the nature of the courts by which it was 
originally enforced. (See the respective ti- 
tles.} That part of the law which is derived 
from lagislation is called the “statute law.” 
Many statutes are classed under one of the 
divisions above mentioned because they have 
merely modified or extended portions of it, 
while others have created ajtogether new 
rules. ‘That part of the law which is derived 
from custom is sometimes called the “eus- 
tomary law,” as to which, see CusTom. 
Sweet. 


The earliest notion of law was not an enumera- 
tion of a principle, but a Judgment in a particular 
case. When pronounced in the early ages, by a 


691 


LAW 


king, it was assumed to be the result of direct di- 
vine inspiration. Afterwards came the notion of 
a@ custom which a judgment affirms, or punishes 
its breach. In the outset, however, the only au- 
thoritative statement of right and wrong is a judt 
cial sentences rendered after the fact has occurred. 
It does not presuppose a law to have been violated, 
but is enacted for the first time by a higher form 
into the judge’s mind at the moment of adjudica- 
tion. Maine, Anc. Law, (Dwight’s Ed.) pp. xv, 5. 

Synonyms and distinctions. Accord- 
ing to the usage in the United States, the 
name “constitution” is commonly given to 
the organic or fundamental law of a state, 
and the’term “law” is used in contradistine- 
tion to the former, to denote a statute or en- 
actment of the legislative body. 

“Law,” as distinguished from “equity,” 
denotes the doctrine and procedure of the 
common law of England and America, from 
which equity is a departure. 

The term is also used in opposition to 
“fact.” Thus questions of law are to be de 
cided by the court, while it isthe provinee of 
the jury to solve questions of fact. 


Classification. With reference to its sub- 
ject-matter, law is either pwblie or private, 
Public law is that part of the law which 
deals with the state, either by itself or in its 
relations with individuals, and is divided in- 
to (1) constitutional law; (2) administrative 
law; (3) criminal law; (4) criminal proced- 
ure; (5) the law of the state considered in its 
quasi private personality; (6) the procedure 
relating to the state as so considered. Holl. 
Jur. 300. 

Law is also divided into substantive and 
adjecitve. Substantive law is that part of 
the law which creates rights and obligations, 
while adjective law provides a method of en- 
forcing and protecting them. In other words, 
adjective law is the law of procedure. Holl. 
Jur. 61, 238. 

The ordinary, but not very useful, division 
of law into written and wnwritten rests on 
the same principle. The written law is the 
statute law; the unwritten law is the com- 
mon law, (q. %.) 1 Steph. Comm, 40, fol- 
lowing Blaekstone. 

Kinds of statutes. Statutes are called 
“general” or “public” when they affect the 
community at large; and focal or special 
when their operation is confined to a limited 
region, or particular class or interest. 

Statutes are also either prospective or re- 
trospective; the former, when they are in- 
tended to operate upon future cases only; 
the latter, when they may also embrace 
transactions occurring before their passage. 

Statutes are called “enabling” when they 


LAW 


confer new powers; “remedial” when their 
effect is to provide relief or reform abuses; 
“penal” when they impose punishment, pe- 
culiary or corporal, for a violation of their 
provisions. 

a In old English jurisprudence, “law” is 
used to signify an oath, or the privilege of 
being sworn; as in the phrases “to wage 
one’s law,” “to lose one’s law.” 

As to the different kinds of law, or law re- 
garded in its different aspects, see ADJECTIVE 
Law; ADMINISTRATIVE Law; Const™?1U- 
TIONAL LAw; CrimiInAL LAw; INTERNA- 
TIONAL Law: LAw oF Nations; Law or 
Nature; Law-MercHant; MUNICIPAL 
Law; Postttve Law; Privare Law; Pus- 
Lid LAW; RETROSPECTIVE Law; SUBSTAN- 
TIVE Law. 


LAW AGENTS. 
in the Seotch courts. 


Law always construeth things to the 
best. Wing. Max. p. 720, max. 193. 


LAW ARBITRARY. Opposed to tm- 
mutable, alaw not founded in the nature of 
things, but imposed by the mere will of the 
legislature. 


LAW BURROWS. In Scotchlaw. Se- 
curity for the peaceable behavior of a party; 
security to keep the peace. Properly, « pro- 
cess for obtaining such security. 1 Forb. 
Inst. pt. 2, p. 198. 


LAW CHARGES. This phrase is used, 
under the Louisiana Civil Code, to signify 
costs incurred in court in the prosecution of 
aauit, to be paid by the party cast. 17 La. 
206; 11 Rob. (La.) 28. 


Law construeth every act to be lawful, 
when it standeth indiiferent whether it 
should be lawful or not. Wing. Max. p. 
722, max. 194; Finch, Law, b. I, c 3, n. 76. 


Law construeth things according to 
common possibility or intendment. 
Wing. Max. p. 705, max. 189. 


Law [the law] construeth things with 
equity and moderation. Wing. Max. p. 
685, max. 183; Finch, Law, b. 1, ¢.3, n. 74. 


LAW COURT OF APPHALS. In 
American law. An appellate tribunal, for- 
‘merly existing in the state of South Carolina, 
for hearing appeals from the courts of law. 


LAW DAY. The day prescribed in a 
bond, morteage, or defeasible deed for pay- 
ment of the debt secured thereby, or, in de- 
fault of payment, the forfeiture of the prop- 


Solicitors practicing 


692 


LAW FRENCH 


erty mortgaged. But this does not now oc- 
cur until foreclosure. 

In old English law. Law day or lage 
day denoted a day of open court; especially 
the courts of a county or hundred. 


Law disfavoreth impossibilities. Wing, 
Max. p. 606, max, 155. 


Law disfavoreth improbabilities. 
Wing. Max. p. 620, max. 161. 


Law [the law] favoreth charity, Wing, 
Max. p. 497, max. 135. é 


Law fayoreth common right. 
Max, p. 547, max. 144. 


Law favoreth diligence, and therefore 
hateth folly and negligence. Wing. Max. 
p- 665, max. 172; Fiach, Law, b. 1, ¢. 3, no. 
70. 


Law favoreth honor and order. Wing. 
Max. p. 739, max. 199. 


Wing. 


Law favoreth justice and right. Wing, 
Max. p. 502, max. 141, 


Law favoreth life, liberty, and dower 
4 Bacon’s Works, 345. 


Law favoreth mutual recompense. 
Wing. Max. p. 411, max. 108; Fineh, Law, 
b. 1, ¢. 3, no. 42. 


Law [the law] favoreth possession, 
where the right is equal. Wing. Max. 
p. 375, max. 98; Fineh, Law, b. i, ec. 8, no, 
36. 

Law favoreth public commerce. Wing. 
Max. p. 738, max. 198. 


Law favoreth public quiet. Wing. 
Max. p. 742, max. 200; Finch, Law, b. 1a 
3, no. 54. q 


Law favoreth speeding of men’s 
causes. Wing. Max. p. 673, max, 175. 


Law [the law] favereth things for the 
commonwealth, [common weal.] Wing. 
Max. p. 729, max. 197; Finch, Law, b, 1, ¢ 
SeNGs Da 


Law favoreth truth, faith, and geer- 
tainty. Wing. Max. p. 604, max. 154. 


LAW FRENCH. The Norman French 
language, introduced into England by Will 
ium the Conqueror, and which, for several 
centuries, was, in an emphatic sense, the 
language of the English daw, being that in 
which the proceedings of the courts and of 
parliament were carried on, and in wiich 
many of the ancient statutes, reports, abridg- 


| HATETH DELAYS 


It is called by Blackstone a “barbarous 
.” and the later specimens of it fully 
tt the appellation, but at the time of 
oduction it was, as has been observed, 
best form of the language spoken in Nor- 
Burrill. 


wv hateth delays. Wing. Max. p.674, 
(176; Finch, Law, b. 1, ch. 3, no. 71. 


_ Law hateth now inventions and inno- 
ms. Wing. Max. p. 756, max. 204. 


_ Law hateth wrong. Wing. Max. p. 563, 
max, 146; Finch, Law, b. 1, ch. 3, no. 62. 


LAW LATIN. The corrupt form of the 
Latic language employed in the old English 
law-books and lega! proceedings. It con- 
tained many barbarous words and combina- 
tions. 


LAW LIST. An annual English publi- 
cation of a gitast official character, comprising 
various statistics of interest in connection 
with the legal profession. It includes (among 
otijer information) the following matters: A 
list of judges, queen’s counsel, and serjeants 
at law; the judges of the county courts; 
benchers of the inns of court; barristers, in 
alphabetical order; the names of counsel 
practicing in the several circuits of England 
and Wales; London attorneys; country at- 
torneys; officers of the courts of chancery 
l and common law; the magistrates and law 

officers of the city of London; the metropoli- 
tan iuagistrates and police; recorders; coun- 
ty court officers and circuits; lord Heutenants 
and sheriffs; colonial judges and officers; 
publie notaries. Mozley & Whitley. 


LAW LORDS. Peers inthe British par- 
liament who have held high judicial office, or 
have been distinguished in the legal profes- 
sion. Mozley & Whitley. 


LAW-MARTIAL. The military law; a 
code of law established for the government of 
the army and navy. 


| LAW-MERCHANT. The general sys- 
tem of usages and customs, in relation to 
commercial transactions, mercantile paper, 
éte., commonly observed alike among all 
commercial nations. 

Since, however, its character is not local, 
nor its obligation confined to a particular 
district, it cannot with propriety be consid- 
ered as a custom in the technical sense. 1 
Steph, Comm. 54. It is a system of law 
which does not rest essentially on the posi- 
tive institutions and local customs of any 


693 


LAW OF NATURE 


particular country, but consists of certain 
principles of equity and usages of trade which 
general convenience and a common sense of 
justice have established, to regulate the deal- 
ings of merchants and mariners in all the 
commercial countries of the civilized world. 
3 Kent, Comm. 2. 


LAW OF ARMS. That law which 
gives precepts and rules concerning war; 
how to make and observe leagues and truce, 
to punish offenders in the camp, and such 
like. Cowell; Blount. Now more common- 
ly called the “law of war,” (q. v.) 


LAW OF CITATIONS. In Roman law. 
An act of Valentinian, passed A. D. 426, 
providing that the writings of only five ju- 
rists, viz., Papinian, Paul, Gaius, Ulpian, 
and Modestinus, should be quoted as authori- 
ties. The majority was binding on the judge. 
If they were equally divided, the opinion of 
Papinian was to prevail; and in such a case, 
if Papinian was silent upon the matter, then 
the judge was free to follow his own view of 
the mutter. Brown. 


Law of itself prejudiceth no man. 
Wing. Max. p. 575, max. 148; Finch, Law, 
b. 1, c. 3, no. 63. 


LAW OF MARQUE. A sort of law of 
reprisal, which entitles him who has re 
ceived any wrong from another and cannot 
get ordinary justice to take the shipping or 
goods of the wrong-doer, where he can find 
them within his own bounds or precincts, 
in satisfaction of the wrong. Cowell; 
Brown. 


LAW OF WATIONS. A system of 
rides and principles established among na- 
tions, and intended for the regulation of 
their mutual intercourse; otherwise called 
“international law,” (qg. 0.) A code of pub- 
lic instruction which defines the rights and 
prescribes the duties of nations in their in- 
tercourse with each other. 1 Kent, Comm. 
1. It is founded for the most part on usage, 
consent, and agreement, but in an impor- 
tant degree, also, on the principles of natural 
law. Id. 2. 


LAW OF NATURE. A rule of conduct 
arising out of the natural relations of human 
beings, established by the Creator, and exist- 
ing prior to any positive precept. Webster. 
The foundation of this law is placed by the 
best writers in the will of God, discovercd 
by right reason, and aided by divine revela- 
tion; and its principles, when applicable, ap- 
ply with equal obligation to individuals and 


id 


LAW OF NATURE 


to nations. 1 Kent, Comm. 2, note; Id. 4, 
note. Sea Jus NATURALE. 


We understand ali laws to be either human or 
divine, according as they have man or God for 
their author; and divine laws are of two kinds, 
that is te say: (1) Natural laws; (8) positive or 
revealed laws. A natural law is defined by Bur- 
lamaqui to be “a rule which so necessarily agrees 
with the naturo and state ef man that, without 
observing its maximis, the peace and happiness of 
society can never be preserved.” And he says 
‘that these are called “natural laws” because a 
knowledge of them may be attained merely by the 
light of reason, from the fact of their essential 
agreeablaness with ths constitution of human 
nature; while, on the contrary, positive ar re- 
vealed laws are not founded upon the general con- 
Blitution of human nature, but only upon the will 
of God; though in other respects such law is es- 
tablished upon very good reason, and procures the 
advantazce of those to whom itis sent. The cere- 
monial or political laws of the Jews are of this 
latier class, 11 Ark, 527. 


LAW OF THE LAND. Due process of 
law, (4. 0.) 

By the law of the land is most clearly in- 
tended the general law which hears before it 
eonudemns, whieh proceeds upon inquiry, and 
renders judgment only after trial. The 
meaning is that every citizen shall hold hig 
life, liberty, property, and immunities un- 
der the protection of general rules which 
govern society. Everything which may 
pass under the form of an enactment is not 
the Jaw of the land. Sedg. St. & Const. 
Law, (2d Ed.) 475. 

When first used in Magna Charta, the phrase 
“the law of the laud” probably meant the estab- 
lished law of the kingdom, in opposition to the 
civil or Roman law, which was about being intro- 
duced. Ttis now genernlly rezarded as meaning 
general public laws binding on all members of the 
community, in contradistinction from partial or 
private laws. 2 Tex. 251; 2 Yerg. 270; 6 Heisic. 
156, 

lt means due process of law warranted by the 
coustitution, by the common law adopted by the 
constitution, or by statutes passed in pursuance of 
the constitution. 1 N. H. 53. 

It means the law as established in a fair, open 
trial, or after opportunity given for such trial, by 
due course and process of law; not a bill of at- 
tainder. 6 Pa. St. 87, 


LAW OF THE STAPLE. Law ad- 
ministered in the court of the mayor of the 
staple; the law-merchant. 4 Inst. 235. See 
STAPLE. 


LAW REPORTS. Published yolumes 
eontuining the reports of cases argued and 
adjudged in the courta of law. 


Law respecteth maiter of substance 
more than matter of circumstance. 


694 


LAWFUL GOODS 


Wing. Max. p. 382, max. 101; Finch, La 
bh. 1, a. 3, no. 39. 


Law respecteth possibility of things. 
Wing. Max. p. 403, max. 104; Finch, La 
b. 1, ¢. 3, no. 40. 


Law [the law] respecteth the bonds 
of nature. Wing. Max. p. 268, max. 78; 
Finch, Law, b. 1, ¢. 3, no, 29, 


LAW SPIRITUAL. The ecclesiastical 
law, or law Christian. Co. Litt. 344. 


LAW TERMS. See Terms. 


LAW WORTHY. Being entitled to, or 
having the benelit and protection of, the law. 


LAWEUL. Legal; warranted or anthor 
ized by the law; having the qualifications 
prescribed by law; not contrary to nor for. 
hidden by the law. 


The principal distinction between the terms 
“lawful” and “legal” ig that the former conten. 
plates the substance of law, the latter the form of 
law. Tosay of an act that it is “lawful” implies 
that it is authorized, sanctioned, or at any rate not 
forbidden, by law. To say that it is “legal” im. 
plies iat it is done or performed in accordance 
with the forms and usages of law, or in a technical 
manner. In this sense “illezal" approaches the 
meéaning of “invalid.” Forexample, a contractor 
will, executed wilhout the required formalities, 
might be said to be invalid orillegal, but could not 
be described as unlawful. Further, the word 
“lawful” more clearly implies an ethical content 
than does “legal.” ‘The latter goes no further than 
to denote compliance with positive, technical, or 
forma) rules; while the former usually importsa 
mora] sibstance or ethical permissibility. A fur- 
ther distinction is that the word “legal” is used as 
the synonyin of “constructive,” which “lawful” is 
not. Thus “legal fraud” is fraud implied or in- 
ferred by law, or madeout by construction. “Law 
ful fraud” would be @ contradiction of terms, 
Again, “legal” is used as the antithesis of “equi- 
table,” ‘Tus, we speal of “legal assets,” “legal 
estate,” eic., but not of “lawful assets” or “law- 
ful estate.” But there are some connections ip 
which the two words are used as exact equivalents. 
Thus, a “lawful” writ, warrant, or process is the 
same us a “legal” writ, warrant, or process, 


LAWFUL AGE. Full age; majority; 
generally the age of twenty-one years, 


LAWFUL AUTHORITIES. The ex- 
pression “lawful authorities,” used in our 
treaty with Spain, refers to persons who ex« 
ereised the power of making grants by aus 
thority of the crown. 9 Pet. 711. 


LAWFUL DISCHARGE. Such a dis- 
charge in insolvency as exonerates the debtor 
from his debts. 12 Wheut. 370. 


LAWFUL GOODS, Whatever is not 
prohibited to be exported by the positive law 


LAWFUL MAN 


of the country, even though it be contraband 
of war; fora neutral has aright to carry such 
goods at his own risk. 1 Johns. Cas. 1; 2 
Johns. Cas. 77; Id. 120. 


LAWFUL MAN. A freeman, unat- 
tainted, and capable of bearing oath; a le 
gaits homo, 


LAWFUL MONEY. Money which is 
a legal tender in payment of debts; e. g., gold 
and silver coined at the mint, 


LAWING OF DOGS. Thecutting sev- 
eral claws of the forefeet of dogs in the for- 
est, to prevent their running at deer. 


LAWLESS COURT. An ancient local 
English court, said to have been held in Es- 
Bex once a year, at cock-crowing, without a 
light or pon and ink, and conducted in a 
whisper, Jacob. 


LAWLESS MAN. An outlaw. 


LAWNDE, LOWNDE. In old English 
law. <A plain between woods. Co. Litt. 50. 


LAWS OF OLERON. A maritime 
code said to have been drawn up by Richard 
I.at the Isle of Oleron, whence its name. 
These laws ure constantly quoted in proceed- 
ings before the admiralty courts, as are also 
the Rhodian laws. Co. Litt. 11. 


LAWS OF WAR. This term denotes a 
branch of public international law, and com- 
prises the body of rules and principles ob- 
served by civilized nations for the regulation 
of matters inherent in, or incidental to, the 
conduct of a public war; snch, for example, 
as the relations of neutrals and belligerents, 
blockades, captures, prizes, truces and ar- 
mistices, capitulations, prisoners, and dec- 
larations of war and peace. 


LAWSUIT. <A vernacular term for a 
auit, action, or cause instituted or depend- 
ing bebween two private persons in the courts 
of law. 


LAWYER. A person learned in the law: 
ag an attorney, counsel, or solicitor. 

Any person who, for fes or reward, prosecutes 
or defends causes in courts of record or other ju- 
dicial tribunals of the United States, or of any of 
the states, or whose business it is to give legal ad- 
vice in relation to any cause or matter whatever. 
Actof July 13, 1866, § 9, (14 St. at Large, 121.) 


LAY, 2 


LAY, edj. Relating to persons or things 
not clerical or ecclesiastical; a person not in 
acgclesiastical orders. Alsv non-professional. 


To state or allege in pleading. 


695 


LAZARET 


LAY, 2. A share of the profits of a fish« 
ing or whaling voyage, allotted te the officers 
and seamen, inthe nature of wages. 3 Story, 
108. 


LAY CORPORATION. A corporation 
composed of lay persons or for lay purposes. 
They are cither civil or eleemosynary. Ang. 
& A. Corp. 28-30; 1 Bl. Comm. 470. 


LAY DAMAGES. To state at the con- 
clusion of the declaration the #mount of 
damages which the plaintiff claims. 


LAY DAYS. In the law of shipping. 
Days allowed in charter-parties for loading 
and unloading the cargo. 8 Kent, Comm, 
202, 203, 


LAY FEE. A feeheld by ordinary fend- 
al tenure, as distinguished from the ecclesi- 
astical tenure of frankalmoign, by whichan 
ecclesiastical corporation held of the donor, 
The tenure of frankaimoign is reserved by 
St. 12 Car. IL., which abolished military ten- 
ures. 2 Bl. Comm. 101. 


LAY IMPROPRIATOR, In English 
ecclesiastical law. <A lay person holding a 
spiritual appropriation. 3 Steph. Comm. 72 


LAY INVESTITURE. In ecclesiasti- 
cal law. The ceremony of putting a bishop 
in possession of the temporalities of his 
diocese, 


LAY OUT. This term has come to be 
used technically in highway laws as embrace 
ing all the series of acts necessary to tlie com- 


plete establishment of a highway. 28 Conn 
375. 

LAY PHOPLE. Jurymen. 

LAYE. Law. 

LAYING THE VENUE. Stating in 


the margin of a declaration the county in 
which the plaintiff proposes that the trial of 
the action shall take place. 


LAYMAN. One of the people, and not 
one of the clergy; one who is not of the legal 
profession; one who is not of a particular 
profession, 


LAYSTALL. <A place for dung or soil. 


LAZARET, or LAAARETTO. A pest- 
house, or public hospital for persons affected 
with the more dangerous forms of contagious 
diseases; a quarantine station for vessels 
coming from countries where such diseases 
are prevalent. 


LAZZI 


LA“2ZI, A Saxon term for persons of a 
servile condition. 


LE CONGRES. A species of proof on 
charges of impotency in France, cottus co- 
ram testibus. Abolished A. D. 1677. 


Le contrat fait la loi. The contract 


makes the law. 


LE GUIDON DE LA MER. Thetitile 
of a French work on marine insurance, by 
an unknown author, dating back, probably, to 
the sixteenth century, and said to have been 
prepared for the merchants of Rouen. It is 
noteworthy az being the earliest treatise on 
that subject now extant. 


Le ley de Dieu et ley de terre sont 
tout un; et l’un et Vautre preferre ot 
favour le common et publique bien del 
terre. The law of God and the law of the 
land areall one; and both preserve and favor 
the common and public good of the land. 
Keilw. 191. 


he ley est le plus haut enheritance 
que le roy ad, car per le ley il mesme 
et touts ses sujets sont rules; et, si le 
ley ne fuit, nul roy ne nul enheritance 
serra, 1J. H.6, 63. The law is the high- 
est. inheritance that the king possesses, for 
by the law both he and all his subjects are 
ruled; and, if there were no law, there would 
be neither king nor inheritance. 


LE ROY, or ROY. The old law-French 
words for “the king.” 


LE ROI VEUT EN DELIBERER. 
The king will deliberate on it. This is the 
formula which the king of the French used 
when he intended to veto an act of the legis- 
lative assembly. 1 Toullier, no. 42. 


LE ROY (or LA REINE) LE VEUT. 
The king (or the queen) wills it. The form 
of the royal assent to public bills in parlia- 
ment, 


LE ROY (or LA REINE) REMERCIE 
SES LOYAL SUJETS, ACCHPTE LEUR 
BENEVOLENCE, ET AINSI LF 
VEUT. The king (or the queen) thanks his 
(er her) loyal subjects, accepts their benevo- 
lence, and therefore wills it to be so, The 
form of the royal assent to a bill of supply. 


LE ROY (or LA RHINE) S’AVI- 
SERA. L. Fr. The king (or queen) will 
advise upon it. The form of words used to 
express the refusal of the royal assent to pub- 
lic bills in parliament. 1 Bl Comm. 184. 
This ia supposed to correspond to the judicial 


696 


LEAGUE 


phrase “curta advisarit oult,” (gq. 0.) 
Chit. Bl. Comm. 184, note. 


Le salut du peuple est la supreme 


loi. Montesq. Esprit des Lois, Ll. xxvii. e. 
23, The safety of the people is the highest 
law. 


LEA, or LEY. A pasture. Co. Litt. 46. 


LEAD. The counsel on either side ofa 
litigated action who is charged with the prin- 
cipal management and direction of the party’s 
case, as distinguished from his juniors or 
subordinates, is said to “lead in the cause,” 
and is termed the “leading counsel” on that 
side, : 


LEADING A USE. Where a deed was — 
executed before the levy of a fine of land, for 
the purpose of specifying to whose use tha 
fine shouid inure, it was said to “lead” the 
use. If executed after the fine, it was said 
to “declare” the use. 2 Bl. Comm. 363. 


LEADING OCASE, Among the yarioug 
cases thal are argued and deterinined in the 
courts, some, from their important character, 
have demanded more than usual attention 
from the judges, and from this circumstance 
are frequently looked upon as having settled 
or determined] the law upon all points in- 
volved in such cases, and as guides for sub- 
sequent decisions, and from the importance 
they thus acquire are familiarly termed “lead- 
ing cases.” Brown. 


LEADING COUNSEL. That one of 
two or more counsel employed on the same 
side in a cause who has the principal man- 
agement of the cause, 


LEADING QUESTION. A question 
put or framed in such a form aa to suggest 
the answer sought to be obtained by the per- 
son interrogating. 

Questious are leading which suggest to the wit- 
ness the answer desired, or which embody a ma- 
terial fact,and may be answered by a mere neg- 
ative or affirmative, or which involve an answer 
bearing immediately upon the merits of the cause, 
and indicating to the witness a represeutation 
which will best accord with the interests of the 
party propounding them. 8 Smedes & M., 104. 

A question is leading which puts into a witness? 
mouth the words that are to be echoed back, or 
plainly suggests the answer which the party 
wishesto getfromhim. 4 Wend. 229, 247. 


LEAGUE. 1. A treaty of alliance be- 
tween different states or parties. It may be 
offensive or defensive, or both. It is offensive 
when the contracting parties agree to unite 
in attacking a common enemy; defensive 
when the parties agree to act in concert in de 


LEAGUE 
other againstanenemy. Whar- 


sure of distance, varying in differ- 
tries. The marine league, marking 
nit of national jurisdiction on the high 

equal to three geovraphical (or ma- 
8 of 6,075 feet each. 


AKAGH. The waste or diminutien 
iquid caused by its leaking from the 
barrel, or other vessel in which it was 


oan allowance made to an importer of 
3, at the custom-house, in the collection 
8, for his loss sustained by the leak- 
of the liquid from its cask or vessel. 


Loyal; that which belongs to the 


LEALTE. Legality; the condition of a 
galis homo, or lawful man. 


LEAN. To incline in opinion or prefer- 
ence, A court is sometimes said to “lean 

ainst” a doctrine, construction, or view 
contended for, whereby it is meant that the 
court regards it with disfavor or repugnance, 
“because of its inexpedience, injustice, or in- 
consistency. 


_ LEAP-YEAR. 


LEARNED. Possessing learning; eru- 
dite; versed in the law. In statutes pre- 
Beribing the qualifications of judges, “learned 
in the law” designates one who has received 
a regular legal education, the almost invari- 
able evidence of which is the fact of his ad- 
mission to the bar. 


LEARNING. 
77. 


LEASE. A conveyance of lands or tene- 
ments to a person for life, fora term of yeurs, 
or at will, in consideration of a return of rent 
or some other recompense. The person who 
! 80 conveys such lands or tenements is termed 
b the “lessor,” and the person to whom they 

are conveyed, the “lessee;” and when the 

lessor 80 conveys lands or tenements to a 

lessee, ho is said to lease, demise, er let them. 
4 Cruise, Dig. 58. 

A conveyance of any lands or tenements, 
(usually in consideration of rent or other an- 
nual recampense,) made for life, for years, or 
at will, but always for a less time than the 
Jessor has in the premises; for, if it be for 
the whole interest, it is more properly an as- 
signment than a lease. 2 Bl. Comm. 317; 
Shep. Touch. 266; Watk. Cony. 220. 


See BIssEXTILE. 


Legal doctrine. 1 Leon. 


697 


LEASING-MAKING 


A contract in writing, under seal, whereby a 
person having a legal estate in hereditaments, 
corporeal or incorporeal, conveys a portion of his 
interest to another, in consideration of a certain 
annual rent or render, or other recompense. 
Archb. Landl. & Ten. 2. 

“Lease” or “hire” is a synallagmatic con- 
tract, to which consent alone is sufficient, and 
by which one party gives to the other the en- 
joyment of a thing, or his labor, at a fixed 
price. Civil Code La. art. 2669, 

When the contract is bipartite, the one 
part is called the “lease,” the other the 
“counterpart.” In the United States, it is 
usual that both papers should be executed 
by both parties; but in England the lease is 
executed by the lessor alone, and given to 
the lessee, while the counterpart is executed 
by the lessee alone, and given to the lessor. 

A concurrent lease, or lease of a reversion, 
is one granted for a term which is to com- 
mence before the determination of a previ- 
ous lease of the same land to another person. 

An undericase or sublease is one executed 
by the lessee of an estate to a third person, 
conveying the same estate fora shorter term 
than that for which the lessee holds it. 


LEASE AND RELEASE. A species 
of conveyance much used in England, said 
to have been invented by Serjeant Moore, 
soon after the enactment of the statute of 
uses. It is thus contrived: «A lease, or 
rather bargainand sale upon some pecuniary 
consideration for one year, is made by the - 
tenant of the freeliold to the lessee or bar- 
gainee. This, without any enrolment, makes 
the bargainor stand seised to the use of the 
bargainee, and vests in the bargaines the use 
of the term for one year, and then the statute 
immediately annexes the possession. Being 
thus in possession, he is capabie of receiving 
a release of the freehold and reversion, which 
roust be made to the tenant in possession, 
and accordingly the next day a release is 
granted] to him. Thelease and release, when 
used as a conveyance of the fee, have the 
joint operation of a single conveyance. 2 
Bl. Comm. 839; 4 Kent, Comm. 482; Co. 
Litt. 207; Cruise, Dig. tit. 32, c. 11. 


LEASEHOLD. An estate in realty heid 
under a lease; an estate for a fixed term of 
years. 


LEASING, or LESING. Gleaning, 


LHASING-MAKING. In old Sectch 
criminal law. Anoffense consisting in slan- 
derous and untrue speeches, to the disdain, 
reproach, and contempt of the king, his coun- 
cil and proceedings, etc. Bell. 


LEAUTE 


LEAUTE. L. Fr. 
tn law. Britt. ce. 109, 


LEAVE. To give or dispose of by will. 
“The word ‘ leave,’ a3 applied to the subject- 
matter, prima facie means a disposition by 
will.” 10 East, 438. 


LEAVE AND LICENSE. A defense 
to an action in trespass setting up the con- 
sent of the plaintiff to the trespass com- 
plained of. 


LEAVE OF COURT. Permission ob- 
tained from a court to take some action 
which, without such permission, would not 
be allowable. 


LECCATOR. A debauched person. 
Cowell, 


LECHERWITE, LAIRWITH, or 
LEGERWITE. A fine for adultery or for- 
nication, anciently paid to the lords of certain 
manors, 4 Inst. 206, 


LECTOR DB LETRA ANTIQUA, In 
Spanish law. A person appointed by com- 
petent authority to read and decipher ancient 
writings, to the end that they may be pre- 
sented on the trial of causes as documents 
entitled to legal credit. Escriche. 


LECTRINUM. A pulpit. 
tom. ili, p. 243. 


LECTURER. An instructor; a reader 
of lectures; also a clergyman who assists 
rectors, ete., In preaching, ete, 


LEDGER. A book of accounts in which 
a trader enters the names of all persons with 
whom he has dealings; there being two par- 
allel columns in each account, one for the en- 
tries to the debit of the person charged, the 
other for his credits. Into this book are 
posted the items froin the day-book or journal. 


Mon. Angl, 


LEDGER-BOOK, In ecclesiastical law. 
The name of a book kept in the prerogative 
courts in England. It is considered as a roll 
of the court, but, it seems, it cannot be read 
in evidence. Bac. Abr. 


LEDGREVIUS. In oid English law. 
A lathe-reeve, or chief officer of a lathe, 
Spelman. 


LEDO. 
the sea. 


LEET. In Englishlaw. The name ofa 
court of criminal jurisdiction, formerly of 
much importance, but latterly fallen into dis- 
use. See CourtT-LEET. 


The rising water or increase of 


698 


Legality; sufficiency | 


| specified sums periodically. If the fund or prop- 


LEGACY 


LEETS. Meetings which were appoi 
for the nomination or eleetion of ecclesiast 
Officers in Scotland. Cowell. 


LEGA, or LACTA. 
Spelman. : 


The alloy of money. 


which may be bequeathed. Cowell. 


LEGACY. A bequest or gift of personal 
property by last will and testament. 

The word “legacy” properly imports a gift of 
personal, as “devise” does a gift of real, proper 
ty; but it may, by reference and construction, ba 
descriptive of real estato. 1 Burrows, 263, 272; 3 
Term, 716. 

Legacies are distinguished and designated, ac 
cording to their nature, as follows; (1) A legaey 
of a particular thing, specified, and distinguished 
from all others of the same kind belonging to the 
testator, is specific. If such legacy fails, resort 
eannot be had to the other property of the testa 
tor, (2) A legacy is demonstrative when the par 
ticular fund or persenal property is pointed out, 
from which it is to be taken or paid. If such fund 
or property fails, in whole or in part, resort may 
be had to the general assets, as in case of a general 
legacy. (3) An annuity is a bequest of certain 


erty out of which they are payable fails, resort 
may be had to the genera) assets, as in case of 
a general legacy. (4) A residuary legacy em- 
braces only that which remains after all the be- 
quests of the will are discharged. (5) All other 
legacies are general legacies. Civil Code Dak. 
§ 755. 

An absolute legacy is one given without 
condition, to vest immediately. 1 Vern, 254; 
2 Vern. 181; 5 Ves. 461; 19 Ves. 86. 

An additional legacy is one given to the 
same Iegateo in addition to (not in lien of) 
another legacy given before by the same will 
or in a codicil thereto. 

An alternate legacy is one by which the 
testator gives one of two or more things with- 
out designating which, 

A conditional legacy is a bequest whose 
existence depends upon the happening or not 
happening of some uncertainevent. 1 Rop. 
Leg. 500, 

A cumulative legacy is an additional leg- 
acy, this being its more proper technical name, 

A demonstrative legicy is a gift of money 
or other fungible substance in quantity, ex- 
pressed to be made payable out of a specified 
sum of money or other specified fungible 
substance. 

A general legacy is one so given as not to 
amount to a bequest of a particular thing or 
money of the testator, distinguished from all 
others of the same kind. 1 Rop. Leg. 170, 

An indefinite legacy is one which passes 
property by a general or collective term, with- 
out enumeration of number or quantity; as 


LEGACY 


st of all the testator’s “goods,” or his 
stock.” Lown. Leg. 84. 
ed legacy is one which, in conse- 
of the death of the legatee before the 
or before the period for vesting, las 
rt vested, 
\ l legacy is a bequest accompanied 
Gens as to the mode in which tt 
d be applied for the legatee's benefit; 
example, a legacy to A., to put him an 
mlice. Lown. Leg. 151. 
A peeuntury legacy is a bequest of a sum 
money. It may or may not specify the 
fund from which it is to be drawn. It is not 
phe less a pecuniary lecacy if it comprises the 
ifie pieces of money in a designated re- 
coptacle, as a purse or chest. 
A residuary legacy is a boquest of all the 
testator’s persona! estate not other wise effect- 
ually disposed of by his will. Lown. Leg, 
10; Bac. Abr. “Legacies,” I; 6 H. L. Cas. 
A specific legacy is a gift of a particular 
portion of the testator’s personal estate, spec- 
ified and distinguished from the rest; or a 
bequest of ear-marked money or of other ear- 
marked fungible substance, in masa, or of 
any non-fungible substance by description. 
A trust legacy is a bequest of personal 
property to trustees to be held upon trust; as 
to pay the annual income to a beneficiary for 
life. 


LEGACY DUTY. A duty imposed in 
England upon personal property (other than 
leaseholds) devolving under any will or in- 
testucy. Brown. 


LEGAL. 1, Conforming to the law; ac- 
cording to law; required or permitted by law; 
noi forbidden or discountenanced by law; 
good and effectual in law. 

2. Proper or sullicient to be recognized by 
the law; cognizable in the courts; competent 
or adequate to fulfiJl the requirements of the 
law. 

3. Cognizable in courts of law, as distin- 
guished from courts of equity; construed or 
governed by the rules and principles of law, 
in contradistinction to rules of equity. 


; 
if 
) 


imputation of the law, a3 a matier of con- 
atruction, rather than established by actual 
proof; ¢. g., legal malice. Sce LAWFuL. 


——— 


LEGAL ASSETS. That portion of the 
assets of a deceased party which by law is 
directly liable, In the hands of his executor 
or administrator, tothe payment of debts and 
legacies. 1 Story, Hq. Jur. § 551. Such as- 


699 


LEGAL INCAPACITY 


sets as can be reached in the hands of an ex- 
ecutor or administrator, by a suit at law 
against him. 


LEGAL CONSIDERATION. One rec- 
ognized or permitted by the law as valid and 
lawful; as distinguished from sueK as are 
illegal or immoral. 


LEGAL CRUELTY. Such as will war- 
rant the granting of a divoree to the injured 
party; as distinguished from such kinds or 
degrees of cruelty as do not, under the stat- 
utes and decisions, amount to suilicient cause 
for a decree. 


Legal cruelty may be defined to be such conduc« 
on the part of the husband as will endanger the 
life, lim», or health of the wife, or ereate a reason- 
able apprehension of bodily hurt; such acts as ren- 
der collabitation unsafe, or are likely to be attend- 
ed with injury to the person or to the health of the 
wife. 36 Ga. 286, 


LEGAL DEBTS. Those that are re- 
coverable in a court of common law, as debt 
on a bill of exchange, a bend, or a simple con- 
tract. 


LEGAL DEFENSE. 1. Adefense 
which is complete and adequate in point of 
law. 

2. A defense which may be set up in a 
eourt of law; as distinguished from an 
“equitable defense,” which is cognizable 
only in a court of equity or court possessing 
equitable powers. 


LEGAL DISCRETION. Thediscretion 
to be exercised by a judge in interpreting the 
law, or in applying equitable principles to the 
determination of causes or the granting of 
relief. 


LEGAL ESTATE. That kind of estate 
which is properly cognizable in the courts of 
common law, though noticed, also, in the 
courts of equity. 1 Steph. Comm. 217. 


LEGAL HEIRS. This phrase, used ina 
devise or a policy of lifo insurance, will be 
held to mean those to whom the law would 
give the person’s property, real and personal, 
if he should dieintestate. 83 I]. 251; (Tex.) 


8S. W. Rep. 203. 
4, Posited by the courts as the inference or | 


, 


A day designated 
oceedings, 
protest of 


LEGAL HOLIDAY. 
by law as exempt from j 
Service of process, det 
commercial paper, ete. 77 


is expres- 
view has the 
prevented by some 
ing it; as in the 
t, lunatics, etc. 


right vested in him, 2 
impediment from exerc 
ease of minors, femcs cove 


LEGAL INTEREST 


An administrator has no right until letters 
are issued to him. Therefore he cannot ben- 
elit (ag respects the tiine before obtaining let- 
ters) by a saving clause in a statute of lim- 
itations in favor of persons under a legal in- 
capacity to sue, 1 Root, 187. 


LEGAL INTEREST. That rate of in- 
terest prescribed by the laws of the particular 
state or country as the highest which may be 
lawtully contracted for or exacted, and which 
must be paid in all cases where the law al- 
lows interest without the assent of the 
debtor. 


LEGAL IRREGULARITY. An irreg- 
ularity occurring in the course of some legal 
proceeding. A defect or informality which, 
in the technical view of the law, is to be ac- 
counted an irregularity. 


LEGAL MALICE. An expression used 
as the equivalent of “constructive malice,” 
or “malice in law.” 52 Me. 502. 


LEGAL MEMORY. See Memory. 


LEGAL MORTGAGE. A term used in 
Louisiana. The law alone in certain cases 
gives to the creditor a mortgage on the prop- 
erty of his debtor, without it being requisite 
that the parties should stipulate it. This is 
called “legal mortgage.” Civil Code La, art. 
3311. 


LEGAL NOTICE. Such notice as is ade- 
quate in point of law; such notice as the law 
requires to be given for the specific purpose 
or in the particular case. 


LEGAL REPRESENTATIVE. A per- 
son who, in the law, represents the person 
and controls the rights of another. The 
phrase is commonly used as the equivalent 
of “executor” or “administrator.” 


The term imports a higher authority than 
“acent,” for an agent acts for his principal, who 
retains the beneficial right; but the legal repre- 
sentative succeeds to the place of the former owner, 
and is vested with his title. 


LEGAL REVERSION. In Scotch law. 
The period within which a proprietor is at 


liberty to redeem land adjudged from him for 
debt. at® 


ER. That kind of coin, 

medium which the law 
accept in payment of 
red by the debtor in the 


compels 
his debt, y 
right amount. 

LEGALIS HO Lat. Alawfulman; 
a person who stands reetus in curia ; a person 
not outlawed, excommunicated, or infamous. 


700 


(gute ee eS ee eee SSE SS ES 


LEGATOR 


It occurs in the phrase, “probi et legates 
homines,” (good and lawful men, competent 
jurors,) and “I-gality” designates the condi- 
tion of such a wan. Jacob. 


LEGALIS MONETA ANGLIA. Law- 
ful money of England. 1 Inst. 207. 


LEGALITY, or LEGALNESS. Law- 
fulness. 


LEGALIZATION. The act of legaliz- 
ing or making legal or lawful. See LeaaL 
IZE. 


LEGALIZE. To make legal or lawful; 
to confirm or validate what was before void 
or unlawful; to add the sanction and author. 
ity of law to that which before was without 
or against law. 


LEGALLY. Lawfully; according to 
law. 


LEGANTINE CONSTITUTIONS. 
The name of a code of ecclesiastical laws, en- 
acted in national synods, held under legates 
from Pope Gregory IX. and Clement IV., in 
the reign of Henry I1I., about the years 1220 
and 1268. 1 Bl. Comm. 83. 


LEGARE. Lat. In the civil and old 
English law. To bequeath; to leave or give 
by will; to give in anticipation of deuth. In 
Scotch phrase, to legate. 


LEGATARIUS. Lat. In the civillaw. 
One to whom a thing is bequeatlied; a legatea 
or legatary. Inst. 2, 20, 2, 4, 5, 10; Bract. 
fol. 40. 

In old European law. 
senger, or envoy. Spelman. 


A legate, mea- 


LEGATER. The person to whom a leg- 
acy is given, 
LEGATES. Nuncios, deputies, or ex- 


traordinary ambassadors sent by the pope te 
be his representatives and to exercise his ju- 
risdiction in countries where the Roman Cath- 
olic Church is established by law. 


LEGATION. Anembassy; a diplomatic 
minister and his suite; the persons commis- 
sioned by one government to exercise diplo- 
matie functions at tle court of another, in- 
eluding the minister, secretaries, attaciis, 
interpreters, etc., are collectively styled the 
“legation” of their government. The word 
also denotes the official residence of a foreign 
minister. 


LEGATOR One who makes a will, and 
leaves legacies. 


LEGATORY 


LEGATORY. The third part of a free- 
man’s personal estate, which by the custom 
of Lendon, in case he hada wife and children, 
the freeman might always have disposed of 
by will. Bae. Abr. “Customs of London,” 
D. 4. 


Légatos violare contra jus gentium est. 
4 Coke, pref. It is contrary to the law of 
nations to injure ambassadors. 


LEGATUM. Lat. Inthecivillaw. A 
regacy; a gift left by a deceased person, to 
be executed by the heir. Inst. 2, 20, 1. 

In old English law. A legacy given to 
the church, or an accustomed mortuary. 
Cowell, 


Legatum morte testatoris tantum con- 
firmatur, sicut donatio inter vivos tra- 
Gitione sola. Dyer, 145. A legacy is con- 
firmed by the death of a testator, in the sume 
manner as a gift from a living person is by 
delivery alone. 


LEGATUM OPTIONIS. In Roman 
law. <A legacy to A. B. of any article or 
articles that A. B. liked to choose or select 
vut of the testator’s estate. If A. B. died 
after the testator, but before making the 
choice or selection, his representative (heres) 
could not, prior to Justinian, make the se- 
lection for him, but the legacy failed alto- 


gether. Justinian, however, made the leg- 
ucy good, and enabled the representative to 
choose. Brown. 


Legatus regis vice fungitur a quo des- 
tinatur et honorandus est sicut ille cujus 
vicem gerit. 12 Coke, 17. An ambassa- 
dor fills the place of the king by whom he is 
sent, and is to be honored as he is whose 
place he fills. 


LEGEM AMITTERE. Lat. To lose 
one’s law; that is, to lose one’s privilege of 
being admitted to take an oath. 


LEGEM FACERE. L. Lat. Inold En- 
glish law. To make law or oath. 


LEGEM FERRE. Lat. In Romanlaw. 
To propose a law to the people for their adop- 
tion. Heineec. Ant. Rom. lib. 1, tit. 2. 


LEGEM HABERE. Lat. To be capa- 
ble of giving evidence upon oath. Wit- 
nesses Who had been convicted of crime were 
ineapable of giving evidence, until 6 &7 Vict. 
G. 85. 


LEGEM JUBERE. Lat. 
iaW, 


In Roman 
To give consent and authority to a 


701 


LEGES NON VERBIS, ETC. 


proposed law; to make or pass it. 
Law, 9. 


LEGEM SCISCERE. Lat. Te give 
consent and authority toa proposed Jaw; ap- 
plied to the consent of the people. 


Tayl. Civil 


Legem terre amittentes, perpetuam 
infamize notam inde merito incurrunt. 
Those who lose the law of the land, then 
justly incur the ineffaceable brand of in- 
famy. 3 Inst, 221. 


LEGEM VADIARE. In old English 
law. To wage law: tooffer or to give pledge 
to make defense, by oath, with compurgators. 


LEGES. Lat, Laws. At Rome, the deges 
(the decrees of the people in a strict sense) 
were laws which were proposed by a magis- 
trate presiding in the senate, and adopted by 
the Roman people in the comitta centuriata. 
Mackeld. Rom. Law, § 31. 


LEGES ANGLIA. Lat. The laws of 
England, as distinguished from the civil law 
and other foreign systems. 


Leges Anglis sunt tripartite,—jus 
commune, consuetudines, ac decreta 
comitiorum. The laws of England are 
threefold,—conimon law, customs, and de- 
erees of parliament. 


Leges figendi et refigendi consuetudo 
est periculosissima. ‘The practice of fixing 
and refixing [making and remaking] the 
laws is a most dangerous one. 4 Coke, pref. 


Leges humans nascuntur, vivunt, et 
moriuntur. Human laws are born, live, 
and die. 7 Coke, 25; 2 Atk. 674; 11 C. B. 
767; 1 Bl. Comm, 89. 


Leges natures perfectissims sunt ot 
immutabiles; humani vero juris condi- 
tio semper in infinitum decurrit, et nihil 
est in eo quod perpetuo stare possit. 
Leges humane nascuntur, vivunt, mo- 
riuntur. ‘The laws of nature are most per- 
fect and immutable; but the condition of 
human law is an unending succession, and 
there is nothing in it which can continue 
perpetually. Human lawa are born, live, 
and die. 7 Coke, 25. 


LEGES NON SCRIPT. Lat. In 
English law. Unwritten or customary laws, 
including those ancient acts of parliament 
which were made before time of memory. 
Hale, Com. Law, 5. See 1 Bl. Comm. 63, 64. 


Leges non verbis, sed rebus, sunt im- 
posite. Laws are imposed, not on words, 
but things. 10 Coke, 101; Branch, Princ. 


LEGES POSTERIORES, ETO, 


Leges posteriores priores contrarias 
abrogant. Luter laws abrogate pricr laws 
that are contrary tothem. Broom, Max. 27, 
29, 


LEGES .SCBRIPTA. Lat. In English 
law. Written laws; statute laws, or acts of 
parliament which are originally reduced into 
writing before they wre enacted, or receive 
any binding power. Hale, Com. Law, 1, 2. 


LEGES SUB GRAVIORI LEGE. 
Laws under a weightier law. Hale, Com. 
Law, 46, 44, 


Leges suum ligent latorem. Laws 
should bind their own maker. Fleta, lib. 1, 
e. 17, § 11. 


LEGES TABELLARIAS. Lat. Roman 
laws regulating the mode of voting by ballot, 
(tabeila.) 1 Kent, Comm. 232, note, 


Leges vigilantibus, non dormientibus, 
subveniunt. The laws aid the vigilant, not 
the negligent. 5 Johns. Ch. 122, 145; 16 
How. Pr. 142, 144. 


LEGIBUS SOLUTUS, Lat. Released 
from the laws; not bound by the laws. An 
expression applied in the Roman civil law to 
the emperor. Calvin. 


Legibus sumptis desinentibus, lege na- 
turze utendum est. When laws imposed 
by tle state fail, we must act by the law of 
nature. 2 Rolle, 298, 


LEGTOSUS. Inold records. Litigious, 
and so subjected fo a course of law. Cowell. 


Legis constructio non facit injuriam. 
Co. Litt. 183. The construction of law does 
no injury, 


Legis interpretatio legis vim obtinet. 
Eliesm. Postn. 55. The interpretation of 
law obiains the foree of law. 


Legis minister non tenetur in execu- 
tione officii sui, fugere aut retrocedera, 
The ininister of the law is bound, in the ex- 
cution of his office, not to fly nor to retreat. 
Branch, Prine. 


LEGISLATION. 
enacting laws, 


LEGISLATIVE POWER. The law- 
making power; the department of government 
whose function is the framing and enactment 
of laws. 


LEGISLATOR. One who makes laws. 


Legislatorum est viva vox, rebus et 
non verbis legem imponere. The voice 


The act of giving or 


702 


LEGITIMUS j 


of legislators is a living voice, to impose 
laws on things, and net on words. 10 Coke, 
101. 


LEGISLATURE. The department, aa- 
sembly, or body of men that makes laws for 
a state or nation; a legislative body. 


LEGISPERITUS. A person skilled or 
learned in the law; a lawyer or advocate. 
Feud. lib. 2, tit. 1. 


LEGIT VEL NON? Im old English 
practice, this was the formal question pro- 
pounded to the ordinary when a prisoner 
claimed the benefit of clergy,—does he read 
or not? If the ordinary found that the pris- 
oner was entitled to clergy, his formal an- 
swer was, “ Legit ut clervicus,” he reads likea 
clerk. 


LEGITIM. In Scotch law. The chil- 
dren’s share in the father’s movables. 


LHEGITIMACY. Lawful birth; the con- 
dition of being burn in wedlock; the opposite 
of illegitimacy or bastardy. 


LEGITIMATE, 2. To make lawful; to 
confer legitimacy; to place a child born be 
fore marriage on the footing of tliose born in 
lawful wedlock. 26 Vt. 653, 657, 658. 


LEGITIMATE, adj. That which is law- 
ful, legal, recognized by law, or according to 
law; aa legitimate children, legitimate aa- 
thority, or lawful power. 


LEGITIMATION. The making legiti- 
mate or lawful that which was not originally 
80; especially the act of legalizing the staius 
of a bastard. 


LEGITIMATION PER SUBSE- 
QUEENS MATRIMONIUM. The legiti- 
mation of a bastard by the subsequent mar- 
riage of his parents. Bell. 


LEGITIME. Lat. In the civil law. 
That portion of a parent’s estate of which he 
eannot disinherit his children withuut a legal 
cause. 


Legitims imperanti parere necesse 
est. Jenk. Cent. 120. One lawfully com- 
manding must be obeyed. 


LEGITIMI HAREDES, Lat. In Ro 
taan law. Legitimate heirs; the agnate re- 
lations of the estate-leaver; so called because 
the inheritance was given to them by a law 
of the Twelve Tables. 


LEGITIMUS. Lawful; legitimate, 


Legitimus heres et filius est quem nuptta 


LEGO 


the marriage points out to be lawful. 
fol. 63. 


LEGO. Lat. In Roman law. 
ith. A common terin in wills, 
Ds 81, et seq. 


LEGRUITA. In old records. 
triminal conversation with a woman. 


LEGULEIUS. A person skilled in law, 
(ix legibus versaius;) one versed in the forms 
of Jaw. Calvin. 

LEIDGRAVE. An officer under the 
Saxon government, who had jurisdiction over 
alath. Ene. Lond. See Laru. 


LEIPA. Inold English law. A fugitive 
or runaway. 


I be- 
Dig. 30; 


LENDER. He from whom a thing is 
borrowed. The bailor of an article loaned. 


LENT. The quadragesimal fast; a time 
of abstinence; the time from Ash-Wednes- 
day to Easier. 


LEOD. People; a people; a nation. 
| Spelman, 
LEODES. In old European law. A 


vassul, or liege man; service; a were or were- 
gild. Spelman. 


LEOHT-GESCHOT. 
ing the church with lights. Ane, Inst. Eng, 


LEOWINA SOCIETAS. Lat. An at 
tempted partnership, in which one party was 
to bear all the losses, and have no shiare in the 
profits. This was a void partnership in Ro- 
tnan law; and, apparently, it would also be 
void as a partnership in English law, as be- 
ing inherently inconsistent with the notion 
of partnership. (Dig. 17, 2, 29,2.) Brown, 


A tax for supply- 


LHP AND LACH. A custom in the 
manor of Writtle, in Essex, that every cart 
which goes over Greenbury within that 
manor (except it be the cart of a nobleman) 
shall pay 4d. to the lord. Blount. 


LEPORARIUS. Agreyhound. Cowell. 


LEPORIUM. A place where hares are 
kept. Mon. Angl. t. 2, p. 1035. 


LHEPROSO AMOVENDO. An aneient 
writ that lay to remove a leper or lazar, who 
thrust himself into the company of his neigh- 
bors in any parish, either in the church or at 
ether public meetings, to their annoyance. 
Reg. Orig. 237. 


A fine for | 


703 


strant, a lawful son and heir is he! 


LET 


LESCHEWSS. Trees fallen by chance 
or wind-falls. Brooke, Abr. 341. 


LESE MAJESTY. The old Englishand 
Scotch translation of “lesa majestas,” or 
high treason. 2 Reeve, Eng. Law, 6. 


LESION. Fr. Damage; injury; detri- 
ment. Kelham. <A term of the Scotch law. 

In the civil law. The injury suffered 
by one who does not receive atull equivalent 
for what he gives ina commutative contract, 
Civil Code La. art. 1860. 

Inequality in contracts. Poth. ObL, no. 33. 


LESPEGEND. An inferior officer in for- 
ests to take care of the vert and venison 
therein, ete. Wharton, 


LESSEE. He to whom a lease is made, 
He who holds an estate by virtue of a lease, 


LESSOR. Ie who grants a leage. 


LESSOR OF THE PLAINTIFF. In 
the action of ejectment, this was the party 
who really and in effect prosecuted the action 
and was interested in its result. The reason 
of his having been so called arose from the 
circumstance of the action having been car- 
ried on in the name of a nominal plaintiff, 
(John Doe,) to whom the real plaintiff had 
granted a fictitious lease, and thus had become 
his lessor. 


LEST. Fr. In French maritime law. 
Ballast. Ord. Mar. liv. 4, tit. 4, art. 1. 


LESTAGE, LASTAGE. A custom for 
carrying things in fairs and markets. Fleta, 
l. 1, c. 47; Termes de la Ley. 


LESTAGEFRY. Lestage free, or ex- 
empt from the duty of paying ballast money, 
Cowell. 


LESTAGIUM. Tastage or lestage; a 
duty laid on the cargo of a ship. Covell. 


LESWES. Tastures. Domesday; Co, 
Litt. 46. <A term often inserted in old deeds 
and conveyances, Cowell. 


LET, v. 
or lease. 
sion. 

In practices. Todeliver. 
is to deliver to bail on arrest. 

In eontracts. To award to oneof several 
persons, who have submitted proposals there- 
for, the contract for erecting publie works or 
doing some part of the work connected there- 
with, or rendering some other service to 
government for a stipulated compensation, 


In conveyancing. To demise 
“To det and set” is an old expres- 


“To let to bail” 


LET 


Letiiug ‘se contract is the choosing one from 
~mong ths number of bidders, and the formal malr- 
ng of the contract with him. The letting, or put- 
ting out, is a different thing from the invitation to 
make proposals; the letting is subsequent to the 
invitation. It is the act of awarding the contract 
~ the proposer, after the proposals have been re- 
¢sived and considered. See 35 Ala. 33, 55. 


LET, n. Inoldconyeyancing. Hindrance; 
rostruction; interruption. Still occasionally 
zsed in the phrase “without any Jeé, suit, 
frouble,” etc. 


LET IN. In practice. Toadmita party 
ea 4 matter of favor; as to open a judgment 
and “let the defendant in” to a defense, 


LETHAL WHAPON. 
A dendly weapon. 


LETRADO. In Spanish law. An advo- 
cate. White, New Recop. b. 1, tit. 1, ¢. 1, 
§ 3, note. 


LETTER. 1. One of the arbitrary marks 
or characters constituting the alphabet, and 
used in written language as the representa- 
tives of sounds or articulations of the human 
organs of speech. Several of the letters of 
the English alphabet have a special signifi- 
cance in jurisprudence, as abbreviations and 
otherwise, or are employed as numerals, 

2. A dispatch or epistle; a written or 
printed message; a communication in writ- 
ing from one person to another at a distance. 

3. In the imperial law of Rome, “letter” 
or “epistle” was the name of the answer re- 
turned by the emperor to a question of law 
submitted to him by the magistrates. 

4. A commission, patent, or written in- 
atrument containing or attesting the grant of 
some power, authority, or right. The word 
appears in this generic sense in many com- 
pound phrases known to commercial law and 
jurisprudence; e. g., letter of attorney, letter 
missive, letter of credit, letters patent. The 
plural is frequently used. 

5. Metaplhorically, the verbal expression; 
the strict literal meaning. The letter of a 
statute, as distinguished from its spérit, 
means the strict and exact force of the lan- 
guage employed, as distinguished from the 
general purpose and policy of the law. 

6. He who, being the owner of a thing, 
lets it out to another for hire or compensa- 
tion. Story, Bailm. § 369. 


LETTER-BOOK. A book in which a 
merchant or trader keeps copies of letters 
sent by him to his correspondents. 


LETTER-CARRIER. An employe of 
the post-office, whose duty it is to carry let- 


In Scotch law. 


704 


LETTER OF CREDIT 


ters from the post-office to the persons t& 
whom they are addressed. 


LETTER MISSIVE. In English law. 
A letter from the king or queen to a dean 
and chapter, containing the name of the per- 
son whom he would have them elect as bishop. 
] Steph. Comm. 666. A request addressed to 
& peer, peeress, or lord of parliament against 
whom a bill has been filed desiring the de 
fendant to appear and answer to tlie bill. 

In civil-law practice. The phrase “let. 
ters missive,” or “letters dimissory,” is som 
times used to denote the papers sent up on 
an appeal by the judge or court below to the 
superior tribunal, otherwise called the “apos- 
tles,” (q. 0.) 


LETTER OF ADVICE. A communi- 
cation from one person to another, advising 
or warning the latter of something which 
he ought to know, and commonly appris- 
ing him beforehand of some act done by the 
writer which will ultimately affect the recip- 
ient. 

It is usual and perfectly proper for the 
drawer of a bill of exchange to write a letter 
of advice to the drawee, as well to prevent 
fraud or alteration of the bill, as to let the 
drawee know what provision has been made 
for the payment of the bill. Chit. Bills, 
162. 


LETTER OF ADVOCATION, In 
Seotch law. The process or warrant by 
which, on appeal to the supreme court or 
court of session, that tribunal assumes to 
itself jurisdiction of the cause, and discharges 
the lower court from all further proceedings 
in the action. Ersk. Inst. 732. 


LETTER OF ATTORNEY. A power 
of attorney; a written instrument by which 
one person constitutes another his true and 
lawful attorney, in order that the latter may 
do for the foriner, and in his place and stead, 
some lawful act. 


LETTER OF CREDENCE. In inter- 
national law. The document which accred- 
its an ambassador, minister, or envoy to the 
court or government to which he is sent; @ 
e., certilies to his appointment and qualifica- 
tion, and bespeaks credit for his official ae- 
tions and representations. 


LETTER OF CREDIT. An open or 
sealed letter, from a merchant in one piace, 
directed to another, in another place or coun- 
try, requiring him, if a person therein 
named, or the bearer of the letter, shall have 
occasion to buy commodities, or to want 


TER OF CREDIT 


y particular or unlimited amount, 
either to procure the same or to pass his prom- 
ise, bill, or bond for it, the writer of the Ject- 
undertaking to provide him the money 
the goods, or to repay him by exchange, 
9 give him such satisfaction as he shall 
uire, either for himself, or the bearer of 
the litter, 3 Chit. Com. Law, 336. 

A Jetter of credit is a written instrument, 
_ aidressed by one person to another, requesi- 
ing the latter to give credit to the person in 
whose favor it isdrawn. Civil Code Cal. 
§ 2858. 

LETTER OF EXCHANGE. A bill of 
excliange, (q. 0.) 


LETTER OF LICENSE. A letter or 
written instrument given by creditors to 
their debtor, who has failed in trade, ete., 
allowing him longer time for the payment of 
his debts, and protecting him from arrest in 
the mean time. Tomlins; Holthouse. 


LETTER OF MARQUE. A commis- 
sion given to a private ship by a government 
fo make reprisals on the ships of another 
state; hence, also, the ship thus commis- 
sioned. 


LETTER OF RECALL. A document 
addressed by the executive of one nation to 
that of another, informing the latter that a 
minister sent by the former has been recalled. 


LETTER OF RECOMMENDATION. 
A writing whereby one person certilies 
concerning another that he is of good charac- 
ter, solyent, possessed of commercial credit, 
i skilled in his trade or profession, or otherwise 
worthy of trust, aid, or employment. It 
may be addressed to an individual or to whom 
it may concern, and is designed to aid the 
person commended in obtaining credit, em- 
ployment, ete. See 18 How. 198. 


LETTER OF RECREDENTIALS. A 
document embodying the formal action of a 
government upon a letter of recall of a for- 
eign minister. It, in effect, accredits him 
back to hisown government. It isaddressed 
to the latter government, and is delivered to 
the minister by the diplomatic secretary of 
the state from which he is recalled. 


LETTERS AD COLLIGENDUM 
BONA DEFUNCTI. In practice. In de- 
fault of the representatives and creditors to 
administer to the estate of an intestate, the 
officer entitled to grant letters of administra- 
tion may grant, to such persons as he ap- 
proves, /citers to collect the goods of the de- 

AM. DICT. LAW—45 


7205 


LETTERS OF SAFE CONDUCT 


ceased, which neither make him executor nor 
administrator; his only business being to cul- 
lect the goods and keep them in his safe cas- 
tody. 2 Bl. Comm. 505. 


LETTERS CLOSE. In English law. 
Close letters are grants of the king, and, be- 
ing of private concern, they are thus distin- 
guished from letters patent. 


LETTERS OF ABSOLUTION. Ab 
solvatory letters, used in former times, when 
an abbot released any of his brethren ab 
omnia subjectione et obedientia, etc., and 
made them capable of entering into some 
other order of religion. Jacob. 


LETTERS OF ADMINISTRATION. 
The instrument by which an administrator 
or administratrix is authorized by the probate 
court, surrogate, or other proper oilicer, to 
have the charge and administration of the 
goods and chattels of an intestate, 


LETTERS OF CORRESPONDENCE. 
In Scotch law. Letters are admissible in ev- 
idence against the panel, z.e., the prisoner 
at the bar, in criminal trials. A letter writ- 
ten by the panel is evidence against him; 
not so one from a third party found in his 
possession. Bell. 


LETTERS OF FIRE AND SWORD. 
See Fire AND Sworp. 


LETTERS OF HORNING, in the law 
Scotland, are letters running in the sover- 
eign’s name and passing the signet. They 
ure directed to messengers at arms, as sher- 
iffs in that part, (%. e, persons specially ap- 
pointed to perform particular duties apper- 
taining to the office of sheriff,) to charge the 
person against whom the letters are directed 
to pay or perform in terms of the “will” of 
the letters, which must be consistent with 
the warrant on which the letters proceed. 
The warrant on which the letters proceed is a 
decree either of .the court of session or of 
some inferior court. Bell. 


LETTERS OF REQUEST. A formal 
instrument by which an inferior judge of ec- 
clesiastical jurisdiction requests the judge of 
a@ superior court to take and determine any 
maiter which has come before him, thereby 
waiving or remitting bis own jurisdiction. 
This is a mode of beginning a suit originally 
in the court of arches, instead of the consis- 
tory court. 


LETTERS OF SAFE CONDUCT. No 
subject of a nation at war with England can, 
by the law of nations, come into the realm, 


————— 


send his goods and merch ise from one izing p nent of a 
place to another, without danger of being said that shay were devised | 
seized, unless he has Weiss of safe conduct, ration. 
which, by divers old statutes, must be granted 
under tle great seal, and enrolled in chan- 
cery, or else are of no effect; the sovereign 
being the best judge of such emergencies as 
muy deserve exemplion from the general law 
ofarms. But passports or licenses from the 
ambassadors abroad are now more usually ab- 
tained, and are allowed to be of equal valid- 
ity. Wharton. 


LETTERS OF SLAINS, or SLANES. 
Letters subscribed by the relatives of a per- 
sou who had been slain, declaring that they 
had received an assythment, and concurring 
in an application to the crown fora pardon 
to the offender. These or other evidences of 
their concurrence were necessary to found 
the application. Bell. 


LETTERS PATENT. Open letters, as 
distinguished from letters close. An instru- 
ment proceeding from the government, and 
conveying aright, authority, or grant to un 
individual, as a patent for a tract of land, or | thousand paces. Domesday; Spelman. 
for the exclusive right to makeand sellanew | A privileged space around a monastery ot 
invention. TFamiliarly termed a “patent.” | @ league or mile in circuit. Spelman. 


LETTERS ROGATORY, A formal LEVAND@ WAVIS CAUSA. Lat. 
communication in writing, sent by a court | For the sake of lightening the ship; denotes 
in which an action is pending to acourtor | a purpose of throwing overboard goods, 
judge of a foreign country, requesting that | which renders them subjects of general ay- 
the testimony of a witness resident within | erage. 
the jurisdiction of the latter court may he LEVANT ET COUCHANT. L.Fr 
there formally taken under its direction and Bie « a Bava At lied! 

in : g up and lying down. erm applie 
transmitted to the first court for use in the to trespassing cattle which have remained 


kein ap te fe “i aim = ees ai long enough upon land to have lain down to 
ee oe ee Gen the several | rest and risen up to feed; generally the space 


states of the Union. ‘The request rests en- oe 
tirely upon the comity of courts towards each ey ee ey, a ee 


other. LEVANTEHS ET CUBANTES. Rising 


LETTERS TESTAMENTARY. The | Upandlyingdown. <A term applied to cat- 
formal instrument of authority and appoint. | He. 3 Bl. Comm. 9 


ment given to an executor by the proper LEVARI FACIAS. Lat. In English 
court, gS gale him to enter upon the | practice. A writ of execution directing the 
discharge of his office as executor. Ii corre- | sheriff to cause to be made of the lands and 
sponds to letters of administration granted | ejattels of the judgment debtor the sum re 
to an axdministrator. covered by the judgment. 
LETTING OUT. The act of awarding Also a writ to the bishop of the diocess, 
a contract; ¢. g., a construction contract, or | Commanding him to enter into the benefice of 
contract for carrying the mails. a judgment debtor, and take and sequester 


the same into his possession, and hold the 
_ LETTRE. In French law. <A letter. It | ¢.mo until he shall have levied the amount 
is used, like our English “letter,” for a form- 


‘ = : of the judgment out of the rents, tithes, and 
al instrument giving authority. profits thereof. 

LETTRES DE CACHET,. Letters is- In American law. <A writ used to sell 
wued and signed by the kings of France, and | lands mortyaged, after a judgment bas been 


were at first made use of occas 
means of delaying the course of j 
during the reign of Louis XIV. the 
obtained by any person of suilicient in 
with the king or his ministers. Un 
persons were imprisoned for life or fora 
period on the most frivolous pretexts, 
gratification of private pique or reven 
without any reason being assigned for 
punishment. They were also granted 
king for the purpose of shielding his 
ites or their friends from the consequene 
of their crimes; and thus were as per 
in their operation as the protection al 
by the church to criminals in a former : 
Abolished duriug the Revolution of 
Wharton. 


LEHUCA. In old French law. 
league, consisting of Aftcen hundred paces 
Spelman, 


In old English law. <A league or mile 


acknowledge) a fine, 
to levy an execu- 
sch a sum of money 


S- LEVY, nm. In practice, A seizure; the 

1 | raising of the money for which an execution 
has been issued, 

LEVY COURT. A court formerly ex- 
isting in the District of Columbia. It wasa 
body charged with the administration of the 
ministerial and financia) duties of Washing- 
5 An old writ | ton county. It was charged with the duty 
| sheriff to sell the goods of Of laying out and repairing roads, building 
had already taken, and had | bridges, providing poor-houses, laying and 
he could not sell them; and as | Collecting the taxes necessary to enable it to 
the debtor’s goods as would | discharge these and other duties, and to pay 
e debt. Cowell. the other expenses of the county. It had 

capacity to make contracts in reference to 
CIAS RESIDUUM DEB.- | any of these matiers, and to raise money to 
writ directed to the sheriff for | meet such contracts. It bad perpetual suc- 
onant vf a partly-satisied debt | cessian, and its functions were those which, 
ni tenements or chattels of | in the several states, are performed by “coun- 
ty commissioners,” “overseers of the poor,” 
F “county supervisors,” and similar bodies 

Fetiats . ee tet te with other designations. 2 Wall. 597. 


and salvage. Commentators disa- LEVYING WAR. In criminal law. 
utthe origin of the expression; but all | The assembling of a body of men for the pur- 
its general meaning is that these | pose of effecting by force a treasonable ob- 
g shall be heard summarily. The most | ject; and all who perform any part, however 
olution is that itrefers tothe place | minute, or however remote from the scene 
iuses were heard. A sail was spread | of action, and who are leagued in the genoral 
he door and officers employed to keep | conspiracy, are considered a3 engaged in lev- 
ers from the trivunal. When these | ying war, within the meaning of the consti- 
were heard, this sail was raised, and | tution. 4 Cranch, 478, 474; Const. art. 3, 
‘ame directly to the court, and their | § 3. 


es wore heard immediately. Asapplied | 1 mwDWESS. Licentiousness; an of- 

iritime courts, its meaning is that | tonse against the public economy, when of 

ould be heard withoutdelay. These | 45 open and notorious character; as by fre- 
Tequire dispatch, and a delay amounts | quenting houses of ill fame, which is an in- 
lly to a denial of justice. (See Cod. | gictable offense, or by some grossly scandal- 
5.) Bouvier, ous and public indecency, for which the pun- 
LEVIABLE. That which may be levied. | ishment at common law is fine and imprison- 
ment. Wharton. 


VIR. In Roman law. A husband’s 

©; a wife’s brother-in-law. Calvin. | LEX. Lat. Law; a law; the law. In 
the Roman jurisprudence this term was often 

LEVIS. Lat. Light; slight; trifling. | used as the synonym of “jus,” in the sense 

vis culpa, slight fault or neglect. Levis- | of a rule of civil conduct authoritatively pre 

a culpa, the slightest neglect. Levis | scribed for the government of the actions of 

, @ slight mark er brand. the members of an organized jurul society. 


VITICAL DEGREES. Degrees of In a more limited and particular sense, it 
ired within which persons are prohibited _ . tat eee agop ak ane eile oe 

rry. They are set forth in the eight- populus (patricians and plebians) in the 
h chapter of Leviticus. comitia, on the motion of a magistrate of 
senatorial rank, as a consul, a praotor, or a 

LEVY, v. To raise; execute; exact; col- | dictator. Such a statute frequently took the 
ather; take up; seize. Thus, to levy | name of the proposer; us the lex Faleidia, 
e or collect) a tax; to levy (raise or set | lex Cornelia etc. 


LEX 


Other specific meanings of the word in Ro- 
man jurisprudence were as follows: 

Positive law, as opposed to natural. 

That system of law which descended from 
the Twelve Tables, and formed the basis of 
all the Roman law. 

The terms of a private covenant; the econ- 
dition of an obligation. 

A form of words prescribed to be used upon 
particular occasions. 

In the language of the middle ages, “lex” 
Meant a body or collection of law; not a 
“code,” in the proper sense of that term. 
Mackeld. Rom. Law, § 98, 

In old English law. A body or collec- 
tion of law; particularly, the Roman or civil 
law. Also the oath of a party with compur- 
gators; as legem facere, leyem vadiare, etc. 
Sometimes in the sense of legal rights; civil 
rights; the protection of the law; as in the 
phrase “legem amittere.” 


LEX ALIA SENTIA. In Roman law. 
The lian Sentian law, respecting wills, 
proposed by the consuls Ailius and Sentius, 
and passed A. U. C. 756, restraining a master 
from manumitting his slaves in certain cases. 
Calvin. 


Lex xequitate gaudet. Law delights in 
equity. Jenk. Cent. p. 36, case 69. 


LEX AGRARIA. In Romanlaw. The 
agrarian law. A law proposed by Tiberius 
Gracchus, A. U. ©. 620, that no one should 
possess more than five hundred acres of land; 
and that three commissioners should be ap- 
pointed to divide among the pvorer people 
what any one had above that extent. 


LEX ALAMANNORUM. The law of 
the Alemanni; first reduced to writing from 
the customs of the country, by Theodoric, 
king of the Franks, A. D. 512. Amended 
and re-enucted by Clotaire II. Spelman. 


Lex aliquando sequitur squitatem. 
Law sometimes follows equity. 3 Wils. 119. 


LEX AMISSA. One who is an infa- 


mous, perjured, or outlawed person. Bract. 
lib. 4, c. 19. 


LEX ANGLIA. 


The commen law. 
land. 


Lex Anglis est lex misericordis. 2 
Inst. 815. The law of England is a law of 
mercy. 


The law of England. 
Or, the curtesy of Eng- 


Lex Angliz non patitur absurdum. 9 
Coke, 22a. The law of England does not 
suffer an absurdity. 


708 


LEX BENEFICIALIS, ETC. 


Lex Anglis nunquam matris sed sem. 
per patris conditionem {imitari partum 
judieat. Co, Litt. 123. The law of England 
Tiles that the offspring shall always folio 
the condition of the father, never that of the 
mother. 


Lex Anglis nunquam sine parliamen- . 
to mutari potest. 2Inst.218. The law of 
England cannot be changed but by pariia- 
ment. 


LEX APOSTATA, 
law. Jacob. 


A thing contrary to 


LEX APPARENS. In old English and 
Norman law, Apparent or manifest law. 
A term used to denote the trial by buttel or 
duel, and the frial by ordeal, “dex” having 
the 3ense of process of law. Called “appar- 
ent” because the plaintiff was obliged to 
make his right clear by the testimony of wit- 
nesses, before he could obtain an order from 
the court to summon the defendant. Spel- 
man. 


LEX AQUILIA. In Roman law. The 
Aquilian law; acelebrated law passed on the 
proposition of the tribune C. Aquilius Gallus, 
A, U. C, 672, regulating the compensation to 
be made for that kind of damage called “in- 
jurious,” in the cases of killing or wounding 
the slave or beast of another. Inst. 4, 3; 
Calvin. 


LEX ATILIA. The Atilian law; a law 
of Rome proposed by the tribune L, Atilius 
Regulus, A. U. C. 443, regulating the ap- 
pointment of guardians. 


LEX ATINIA. In Roman law. The 
Atinian law; a law declaring that the prop- 
erty in things stolen should not be acquired 
by prescription, (wsweapione.) Inst. 2, 6, 2; 
Adams, Rom. Ant. 207. 


LEX BATUVARIORUM, (BAIORIO- 
RUM, or BOIORUM.) The law of the 
Bavarians, a barbarous nation of Europe, 
first collected (together with the law of the 
Franks and Alemanni) by Theodoric I., and 
finally completed and promulgated by Dago- 
bert. Spelman. 


LEX BARBARA, The barbarian law. 
The laws of those nations that were not sub- 
ject to the Roman empire were so culled. 
Speloan. 


Lex beneficialis rei consimili remoe- 
dium preestat. 2 Inst. 689. <A beneficial 
law affords a remedy fur a similar case, 


LEX BREHONIA 


BREHONIA. The Brehon or 
overthrown by King John. See 
; Law, 


RETOISE. The law of the an- 
nt Britons, or Marches of Wales. Cowell. 


¥ BURGUNDIONUM. The law of 
urgundians, a barbarous nation of Eu- 
é, first compiled and pubiished by Gunide- 
i, one of the last of their kings, about A. 
500. Spelman. 


Lex citius tolerare vult privatum 
‘damnum quam publicum malum. The 
law will more readily tolerate a private loss 
‘than a public evil. Co. Litt. 152. 


LEX COMITATUS. The law of the 
county, or that administered in the county 
court before the earl or his deputy. Spel- 
man. 

LEX COMMISSORIA. In Roman law. 
A law by which a debtor and ereditor might 
agree (where a thing had been pledged to the 
latter to secure the debt) that, if the debtor 
did not pay at the day, the pledge should be- 
come the absolute property of the creditor. 
2 Kent, Comm. 583. This was abolisied by 
a law of Constantine. 

A jaw according to which a seller might 
stipulate that, if the price of the thing sold 
were not paid within a certain time, the sale 
should be void. Dig. 18, 3. 


LEX COMMUNIS. 
Seo Jus COMMUNE. 


The common law. 


Lex contra id quod preesumit, proba- 
tionem non recipit. The law admits no 
proof against that which it presumes. Lofft, 
573. 


LEX CORNELIA. In Roman law. 
The Cornelian law; a law passed by the dic- 
tator L. Cornelius Sylla, providing remedies 
for certain injuries, as for battery, forcible 
entry of another's house, etc. Calvin. 


| 


LEX CORNELIA DE FALSO. In 
Roman law. The Cornelian law respecting 
forgery or counterfeiting. Passed by the 
dictator Sylla. Dig. 48, 10; Calvin. 


LEX CORNELIA DE SICARIIS ET 
VENEFICIS. In Roman law. The Cor- 
nelian law respecting assassins and poison- 
ers. Passed by the dictator Sylla. Dig. 48, 
6; Calvin. 


LEX DANORUM. 
Danes; Dane-law or Dane-lage. 


The law of the 
Spelman. 


709 


LEX ET CONSUETUDO REGNI 


Lex de futuro, judex de preterito. 
The law provides for the future, the judge 
for the past. 


Lex deficere non potest in justitia 
exhibenda. Co. Litt. 197. The law can- 
not be defective in dispensing justice, 


LEX DERAISNIA. The proof of a 
thing which one denies to be done by him, 
where another aflirms it; defeating the as- 
sertion of his adversary, and showing it be 
against reason or probability. ‘This was used 
among the old Romans, as well as the Nor- 
mans. Cowell. 


Lex dilationes semper exhorret. 2 
Inst. 240. The law always abbors delays. 


LEX DOMICILII. Thelaw of the dom- 
icile. 2 Kent, Comm. 112, 433. 


Lex est ab eterno. Law is from ever- 
lasting. A strong expression to denote the 


Temote antiquity of the law. Jenk. Cent. 
p. 34, case 66. 
Lex est dictamen rationis. Law is the 


dictate of reason, Jenk. Cent. p. 117, case 
33. The common law will judge according 
to the law of nature and the public good. 


Lex est norma recti. Law is a rule of 


right. Braneh, Prine. 


Lex est ratio summa, que jubet ques 
sunt utilia et necessaria, et contraria 
prohibet. Law is the perfection of reason, 
which commands what is useful and neces- 
sary, and forbids the contrary. Co. Litt. 
3196; Id. 976. 


Lex est sanctio sancta, jubens ho- 
nesta, et prohibens contraria. Law isa 
sacred sanction, commanding what is right, 
and prohibiting the contrary, 2 Inst. 587. 


Lex est tutissima cassis; sub clypeo 
legis nemo decipitur. Law is the safest 
helmet; under the shield of the law no one is 
deceived. 2 Inst. 56. 


LEX ET CONSUETUDO PARLIA- 
MENTI. Thelawand custom (or usage) of 
parliament. The houses of parliament con- 
stitute a court not only of legislation, but 
also of justice, and have their own rules, by 
which the court itself and the suitors therein 
are governed. May, Parl. Pr. (6th Ed.) 
38-61. 


LEX ET CONSUETUDO REGNI 
The law and custom of the realm. One of 
the names of the common law. Hale, Com. 
Law. 52. 


LEX FALCIDIA 


LEX FALCIDIA. InRomanlaw. The 
Falcidian law; a law passed on the motion 
of thetribune P, Falcidius, A. U. C. 713, for- 
bidding a testator to give more in legacies 
than three-fourths of all his estate, or, in 
other words, requiring him to leave at least 
one-fourth tothe heir. Inst.2,22; Heinecc. 
Elem. lib. 2, tit. 22. . 


Lex favet doti. 
law favors dower. 


Jenk. Cent. 50. The 


Lex fingit ubi subsistit equitas. 11 
Coke, 90. The law makes use of a fiction 
where equity subsists. 


LEX FORI. ‘The law of the forum, or 
court; that is, the positive law of the state, 
country, or jurisdiction of whose judicial 
system the court where the suit is brought 
or remedy sought is an integral part. 

“Remedies upon contracts and their incidents 
are regulated und pursued according to the law of 
the place where the action is instituted, and the 
lex loct has no application.” 2 Kent, Comm. 462. 
“The remedies are to be governed by the laws of 
the country where the suit is brought; or, as it is 
compendious!y expressed, by the lex fori.” 8 Pat. 
361, 872. “So far as the law affects the remedy, 
the ler fort, the law of the place where that rem- 
edy is sought, must govern. But, so far asthe law 
of the construction, the legal operation and effect, 
of the contract, is concerned, it is governed by the 
law of the qlace where the contract is made.” 
4 Mete. (Mass.) 594, 597. Bee Lex Locr Contrac- 
TOS. 


LEX FRANCORUM. The law of the 
Franks; promulgated by Theodorie I., son 
of Clovis I., at the sume time with the law 
of the Alemanni and Bavarians. Spelman. 
This was a different collection from the Salic 
law. 


LEX FRISIONUM. The law of the 
Frisians, promulgated about the middle of 
the eighth century. Spelman. 


LEX FURIA CANINIA. In Roman 
law. The Furian Caninian law; alaw passed 
in the consulship of P. Furius Camillus and 
C. Caninius Gallus, A. U. C. 752, prohibiting 
musters from manuinitting by will more than 
a certain number or proportion of their 


slaves. This law was abrogated by Justin- 
ian. Inst. 1, 7; Heinecc. Elem. lib. 1, 
tite. 


LEX GOTHICA. 
law of the Goths. 
writing, A. D. 406. 


The Gothic law, or 
First promulgated in 
Spelman. 


LEX HOSTILIA DE FURTIS. A 
Ryman law, which provided that a prosecu- 
tien for theft might be carried on without the 


710 


a er 
Se ee SS 


LEX LONGOBARDORUM 


owner’s intervention, 4 Steph. Comm. (7th 
Ed.) 118. | 


LEX IEMPERATORIA. The Imperial 
or Roman law. Quoted under this name, by 
Fleta, lib. 1, ¢. 38, § 15; Id. lib. 3, e. 10, 


§ 3. 
Lex intendit vicinum vicini facta 
scire. The law intends [or presumes] that 


one neighbor knows what another neighbor 
does. Co, Litt. 78d. 


Lex judicat de rebus necessario fa- 
ciendis quasi re ipsa factis. The law 
judges of things which must necessarily be 
done ag if actually done. Brancli, Princ. 


LEX JUDICIALIS. An ordeal, 


LEX JULIA MAJESTATIS, In Ro- 
manlaw. The Julian law of majesty; alaw 
promulgated by Julius Cesar, and again pub- 
lished with additions by Augustus, compre 
hending all the laws before enacted to punish 
transgressors against the state. Calvin. 


LEX LOCI, Thalawofthe place. This 
may be of the following severai descriptions: 
Lex loct contractus, the law of the place 
where the contract was made or to be péer- 
formed; lew loci actus, the law of the pluce 
where the act was done; lex loci rei site, the 
law of tha place where the subject-matter 
is situated; len loct domiciiti, the law of tha 
place of domicile. 


LEX LOCI CONTRACTUS. The law 
of the place of the contract. The local law 
which governs as to the nature, construction, 
and validity of a contract. 


LEX LOCI DELICTUS. The law of 
the place where the crime took place. 


LEX LOCI REI SITH. The law of 
the place where a thing is situated. “It is 
equally settled in the law of all civilized 
countries that rea! property, as to its tenure, 
mode of enjovment, transfer, and descent, is 
to be regulated by the tea loct rez site.” 2 
ixent, Comm. 429, 


LEX LOCI SOLUTIONIS. The law 
of the place of solution; the law of the place 
where payment or performance of a contract 
is to be made. 


LEX LONGCBARDORUM. The law 
of the Lombards. The name of an ancient 
code of laws among that people, framed, prob- 
ably, between the Ofth and eighth centuries, 
It continued in force after the incorporation 
of Lembardy into the empire of Charlemagne, 
and traces of its laws and institutions are 


LEX MANIFESTA 


Tialy. 


LEX MANIFESTA. Manifest or open 
law; the trial by duel or ordeal. The same 
with lex apperens, (gq. v-) In King John's 
eharter (chapter 38) and the articles of that 
charter (chapter 23) the word “manifestam” 
ig omitted, 


LEX MERCATORIA. The law-mer- 
chant. That system of laws which is adopt- 
ed by all commercial nations, and constitutes 
8 part of the law of the land. 


Lex necessitatis est lex temporis; i.e., 
instantis. The law of necessity is the law 
of the time; that is, of the instant, or pres- 
ent moment. Tob. 159, 


Lex neminem cogit ad vana seu in- 
utilia peragenda, The law compels no one 
todo vain or useless things. 5 Coke, 2la; 
Co, Litt. 1976; Broom, Max. 252. 


Lex neminem cogit ostendere quod 
hescire presumitur. Lofft, 569. The 
law compels no one to show that which he is 
presumed not to know. 


Lex nemini facit injuriam. The law 
does injury to no one. Branch, Prine. 


Lex nemini operatur iniquum. The 
law works injustice to noone. Jenk. Cent. 
p. 18, case 33. 


Lex nil facit frustra. The law does 
nothing in vain. 1 Ventr. 417; Jenk. Cent. 
p. 12, case 19; Broom, Max. 252. 


Lex nil frustra jubet. The law com- 
mands nothing vainly. 3 Bulst. 280. 


Lex non a rege est violanda. 
Cent. 7. 
the king. 


Jenk. 
The law is not to be violated by 


Lex non cogit ad impossibilia. The 
law does not compel the duing of impossi- 
bilities, Hob. 96; Broom, Max. 242. 


Lez non curat de minimis. Hob. 88, 
Tha law cares not about trifles. 


Lex non deficit in justitia exhibenda. 
The law does not fail in showing justice. 
Jenk. Cent. p, 31, case 61. 


Lex non exacte definit, sed arbitrio 
boni viri permittit. The law dogs not de- 
fine exactly, but trusts in the judgment of a 
good man. 9 Mass. 475. 


Lex non favet delicatorum votis. The 
law favors not the wishes of the dainty. 9 
foke. 58: Broom, Max. 379. 


said to be atill discoverable in some parts of { 


711 


| tilis labor stultus. 


LEX REGIA 


Lex non intendit aliquid impossibile. 
The law does not intend anything impossi- 
ble. 122 Coke, 892. For otherwise the law 
should not be of any effect. 


Lex non patitur fractiones et divisi- 
ones statuum. The law does not suffer 
{fractions and divisions of estates. Branch, 
Prine.; 1 Coke, 87a. 


Lex non preecipit inutilia, quia inu- 
Co. Litt. 197. The 
law commands not useless things, because 


| useless labor is foolish. 


Lex non requirit vorificari quod ap- 
parot curis, The law does not require that 
to be verified [or proved] which is apparent 
to the court. 9 Coke, 540. 


LEX NON SCRIPTA, The unwritten 
or common law, which includes general and 
particular customs, and particular local laws. 


LEX ORDINANDI. The sawe as leo 
Sort, (q. 0.) 


LEX PAPIA POPPAIA, In Roman 
law. The Papian Poppean law; a law pro- 
posed by the consuls Papius and Poppeus at 
the desire of Augustus, A. U. C. 762, enlarg- 
ing the Lew Pretoria, (g.v.) Inst. 3, 8, 2. 


Lex plus laudatur quando ratione pro- 
batur. The law is the more praised when 
it is approved by reason, Broom, Max, 159, 


Lex posterior derogat priori. <A later 
statute takes away the effect of a prior one. 
But the later statute must either expressly 
repeal, or be manifestly repugnant to, the 
earlier one. Broom, Max. 29; Mackeld. 
Rom. Law, § 7. 


LEX PRATORIA. 
The Pretorian law. A law by which every 
freedman who made a will was commanded 
to leave a moiety Lo his patron. Inst. 3, 8,1. 

The term has been applied to the rules that 
govern in a court of equity. Gilb. Ch. pf. 2. 


Lex prospicit, non respicit. Jenk. 
Cent. 284. Thelaw looks forward, not back- 
ward. 


Lex punit mendacium. The law pun- 
ishes falsehood. Jenk. Cent, p. 15, case 26, 


LEX REGIA. In Roman law. The 
royal or imperial law. A law enacted (or 
supposed or claimed to have been enacted} by 
the Roman people, constituting the emperor 
a source of law, conferring the legislative 
power upon him, and according the foree and 
obligation ef law %& the expression of hic 


In Roman law. 


LEX REI SIT 


nere will or pleasure, See Inst. 1, 2, 6; 
Faivs, 1, 5; Mackeld, Rom. Law, § 46; 
Aeinece. Rom. Ant. 1. 1, tit. 2, §§ 62-67; 1 
«ent, Comm, 544, note. 


LEX REI SIT. The law of the place 
wf situation of the thing. ,- 


Lex rejicit superfilua, pugnantia, in- 
congrua. Jenk. Cent. 188, The law re- 
jects superfluous, contradictory, and incon- 
gruous things. 


Lex reprobat moram. Jenk. Cent. 35. 


The law dislikes delay. 


Lex respicit equitatem, Co, Litt. 24d. 


The law pays regard to equity. 


LEX RHODIA. The Rhodian law, par- 
ticularly the fragment of it on the subject of 
jettison, (de jactu,) preserved in the Pan- 


dects. Dig. 14, 2, 1; 3 Kent, Comm. 252, 
233. 

LEX SACRAMENTALIS. Purgation 
by oath. 


LEX SALICA. The Salic law, or law 
of the Salian Franks, a Teutonic race who 
settled in Gaul in the fifth century. This 
ancient code, said to have been compiled 
about the year 420, embraced the laws and 
customs of that people, and is of great his- 
torical value, in connection with the origins 
of feudalism and similar subjects. Its most 
celebrated provision was one which excluded 
woinen from the inheritance of landed es 
tates, by an extension of which law females 
were always excluded from succession to 
the crown of France. Hence this _ pro- 
vision, by itself, is often referred to as the 
“Salic Law.” 


LEX SCRIPTA, Written law; law de- 
riving its force, not from usage, but from ex- 
press legislative enactment; statutelaw. 1 
Bl Comm. 62, 85. 


Lex scripta si cesset, id custodiri 
oportet quod moribus et consuetudine 
inductum est; et, si qua in re hoe 
defecerit, tune id quod proximum et 
consequens ei est; et, si id non appar- 
eat, tunc jus quo urbs Romana utitur 
servari oportet. 7 Coke, 19. If the writ- 
ten law be silent, that which is drawn from 


manners and custom ought to be observed;, 


and, if that is in any manner defective, then 
that which is next and analogous to it; and, if 
that does not appear, then the law which 
Rome uses should be followed. This maxim 
of Lord Coke is so far followed at the present 


712 


LEX WALLENSICA 


day that, in cases where there is no precedent 
of the English courts, the civil law is alwa 
heard with respect, and often, though not 
necessarily, followed. Wharton. 


_ Lex semper dabit remedium. Thelaw 
will always give a remedy. Branch, Prine; 
Broom, Max. 192. 


Lex semper intendit quod convenit 
rationi. Co. Litt. 78). The law always in- 
tends what is agreeable to reason. 


LEX SITUS. Modern law Latin for 
“the law of the place where property is situ- 
ated.” The general rule is that lands and 
other immoyables are governed by the lea 
situs; i. e., by the law of the country in 
which they are situated. Westl. Priv. Int. 
Law, 62. 


Lex spectat natures ordinem. The law 
regards the order of nature. Co, Litt. 1976. 


Jenk. Cent, 
The law assists the ignorant. 


Lex succurrit ignoranti. 
15. 


Lex suceurrit minoribus. The law alda 
minors. Jenk. Cent. p. 51, case 97. 


LEX TALIONIS. The law of retalia- 
tion; which requires the infliction upon a 
wrongdoer of the same injury which he has 
caused to another. Txpressed in the Mosaic 
law by the formula, “an eya for an eye; a 
tooth for a tooth,” ete. In modern interna 
tional law, the term describes the rule by 
which one state may inflict upon the citizens 
of another state death, imprisonment, or otl: 
er hardship, in retaliation for similar injuries 
imposed upon its own citizens. 


LEX TERRA. The law of the land. 
The common law, or the dune course of the 
common law; the general law of the land 
Bract. fol. 175. Equivalent to “due process 
of law.” 

In the strictest sense, trial by oath; the 
privilege of making oath. Bracton uses the 
phrase to denote a freeman's privilege of be- 
ing sworn in court as a juror or witness, 
which jurors convicted of perjury forfeited, 
(legem terre amitiant.) Bract. fol. 2926. 


Lex uno ore omnes slloquitur. The 
law addresses all with one [the same] mouth 
or voice. 2 Inst. 184. 


Lex vigilantibus, non dormisntibus, 
subvenit. Law assists the wakeful, uot the 
sleeping. 1 Story, Cont. § 629. 


LEX WALLENSICA. The Welsh law. 
the law of Wales. Blount. 


ij 


LEX WISIGOTHORUM 


‘LEX WISIGOTHORUM. The law of 
Visigoths, or Western Goths who settled 

pain; first reduced to writing A. D. 466. 
Atrevision of these laws was made by Egigas. 
man. 


‘ LEY. In Spanish law. A law; the law; 
law in the abstract. 


LEY CIVILE. In old English law. 
The civil or Roman law. Yearb. H. 8 Edw. 
Ill. 42. Otherwise termed “ley escripte,” 
the written law. Yearb. 10 Edw. III. 24. 


LEY GAGER. L. Fr. Law wager; 
wager of law; the giving of gage or security 
by a defendant that he would make or perfect 
hia law at a certain day. Litt. § 514; Co. 
Litt. 294), 295a, 


LEYES DE ESTILO, In Spanish law. 
A collection of laws, usually published as an 
appendix to the Fuero Real; treating of the 
mode of conducting suits, prosecuting them 
to judgment, and entering appeals. Schm. 
Civil Law, Introd. 74. 


LEZE-MAJESTY. An offense against 
sovereign power; treason; rebellion. 


LIABILITY. The state of being bound 
or obliged in law or justice to do, pay, or 
make good something; legal responsibility. 
86 Iowa, 226; 36 N. J. Law, 145; 57 Cal. 209. 


LIABLE. 1. Bound or obliged inlaw or 
equity; responsible; chargeable; answerable; 
cumpellable to make satisfaction, compensa- 
tion, or restitution. 

2. Exposed or subject to a given contin- 
gency, risk,orcasualty, which is more or less 
probable. 


LIARD. A farthing. 


LIBEL, 0. Inadiniralty practice. To pro- 
ceed against, by filing a libel; to seize under 
admiralty process, at the commencement of a 
suit. Also to defame or injure a person’s 
reputation by a published writing. 


LIBEL, . Inpractice. The initiatory 
pleading on the part of the plaintiif or com- 
plainant in an admiralty or ecclesiastical 
cause, corresponding to the declaration, bill, 
or complaint. 

In the Scotch law it is the form of the 
complaint or ground of the charge on which 
either a civil action or criminal prosecution 
takes place. Bell. 

In torts. That which is written or 
printed, and published, calenlated to injure 
the character of another by bringing him into 


713 


ce ee 
— eee 


LIBELEE 
ridicule, hatred, or contempt. 15 Mees. & 
W. 344. 

Libel is a false and unprivileged publica- 
tion by writing, printing, picture, efiigy, or 
other fixed representation to the eye which 
exposes any person to hatred, contempt, ridi- 
cule, or obloguy, or which causes him to be 
shunned or avoided, or which has a tendency 
to injure him in his occupation. Civil Code 
Cal. § 45. 

A libel is a false and malicious defamation 
of another, expressed in print or writing or 
pictures or signs, tending to injure the repu- 
tation of an individual, and exposing him to 
public hatred, contempt, or ridicule. The 
publication of the libelous matter is essential 
to recovery. Code Ga. 1882, § 2974. 

A libelisa malicious defamation, expressed 
either by writing, printing, or by signs or 
pictures, or the like, tending to blacken the 
memory of one who is dead, or to impeach 
the honesty, integrity, virtue, or reputation, 
or publish the natural or alleged defects, of 
one who isalive, and thereby to expose him 
to public hatred, contempt, or ridicule, Pen, 
Code Cal. § 248; Rev. Code Iowa 1880, 
§ 4097; Bac. Abr. tit. “Libel;” 1 Hawk. P. 
C. 1, 73, § 1; 4 Mass. 168; 2 Pick. 113; 25 
Wend. 193; 7 Cow, 613. 

A libel is a censorious or ridiculing writing, 
picture, or sigu made with a mischievous intent, 
4 McCord, 317; 3 Johns. Cas. 354; 9 Johns. 215¢ 
5 Bin. 340; 68 Me. 295. 

Any publication the tendeney of which {s to de 
grade or injure another person, or to bring him in- 
to contempt, ridicule, or hatred, or which accuses 
him of a crime punisbable by law, or of an act 
odious and disgraceful in society, is a libel. 4 
Mason, 115; 3 How. 206, 291. 

A libel is a publication, without justification or 
lawful excuse, of words calculated to injure the 
reputation of another, and expose him to hatred or 
contempt, 5 Biss. 830. 

Everything, written or printed, which re 
flects on the character of another, and is pub- 
lished without lawful justification or excuse, 
is a libel, whatever the intention may have 
been. 15 Mees. & W. 435, 


LIBEL OF ACCUSATION. In 
Seotch law. ‘The instrument which con- 
tains the charge against a person aceused 
ofacrime. Libels are of two kinds, name- 
ly, indictments and criminal letters. 


LIBELANT. The complainant or party 
who files a libel in an ecclesiastical or admi- 
ralty case, corresponding to the plaintiff in 
actions at law. 

LIBELEEH. A party against whom a 
libel has been filed in an ecclesiastical court 
or in aduiiralty. 


LIBELLUS 


LIBELLUS. Lat. In the civillaw. A ! 
little book. Libellus suppleax, a petition, es- | 
pecially to the emperor, all petitions to whom | 
must be in writing. Libellum rescribere, to 
mark on such petition the answer to it. Zé- 
bellum agere, to assist or counsel the empe- 
ror in regard to such petitions.  Zibellus 
accusaiorius, an information and accusa- | 
tion of acrime. Libellus divortii, a writing | 
of divorcement. Libellus rerum, an inven- 
tory. Calvin. Litbellus or oratio consultoria, 
& Message by which emperors laid matters 
befora the senate. Id. 

A writing in which are contained the names 
of the plaintiff (actor) and defendant, (revs,) 
the thing sought, the right relied upon, and 
name of the tribunal before which the action 
is brought. Calvin. 

In feudallaw. An instrument of alien- 
ation or conveyance, as of a fief, ora part of it. 


LIBELLUS CONVENTIONIS. In the 
civillaw. Thestatement ofa plaintiif’s claim 
in a petition presented to the magistrate, 
who directed an officer to deliver it to the de- 
fendant. 


LIBELLUS FAMOSUS. In the civil 
law. A defamatory publication; a publica- 
tion injuriously affecting character; a libel. 
Inst. 4, 4, 1; Dig. 47, 10; Cod. 9, 36. 


LIBELOUS. Defamatory; of the nature 
of a libel; constiluting or involving libel. 


LIBER. Lat. <A book, of whatever ma- 
terial composed; a main division of a liter- 
ary work. Also, a8 an adjective, free or 
exempt. 


LIBER ASSISARUM. 
Assizes. <A collection of cases that arose on 
assizes and other trials in the country. It 
was the fourth volume ofthe reports of the 
reign of Edward Ill. 3 Reeve, Eng. Law, 
148. 


LIBER BANCUS. Inold English law. 
Free bench. Bract. fol. 97%. 


LIEBER ET LEGALIS HOMO. Inold 
English law. A free and jJawfulman. A 
term applied to a juror, from the earliest pe- 
riod. 


LIBER FEUDORUM. The book of 
feuds. 
law, prepared by order of the emperor Fred- 
erick J., and published at Milan in 1170. It 
comprised five books, of which only the first 
two are now extant with fragmentary por- 
tions of the others, 


The Book of 


714 


) sense of the term in the laws of the barbara " 


This was 8 compilation of feudal |: 


LIBERA LEX 


. 

LIBER HOMO. A freeman; afreemz 

lawfully competent to act as juror. 
Raym. 417; Kebl. 563. ; 

An allodial proprietor, as distinguis 

from a vassal or fendatory. This was 


nations of Europe. 


LIBER JUDICIALIS OF ALFRED, 
Alfred’s dome-book. See DoMESDAY. 


LIBER JUDICIARUM. The book ot 
judgment, or doom-book. The Saxon Dom- 
boc. Conjectured to be a book of statutes of 
ancient Saxon kings. 


LIBER NIGER. Black book. Aname 
given to several ancient records, 


LIBER NIGER DOMUS REGIS, (the 
black book of the king’s household.) The 
title of a book in which there is an account 
of the household establishment of King Md- 
ward LY., and of the several musicians re- 
tained in his service, as well for his pri- 
vale amusement as for the service in his 
chapel. Enc. Lond. 


LIBER NIGER SCACCARII. The 
black book of the exchequer, attributed te 
Gervase of Tilbury. 1 Reeve, Eng, Law, 
220, note. 


LIBER RUBER SCACCARII. The 
red book of the exchequer. 1 Reeve, Eng. 
Law, 220, note. 


LIBERA. A livery or delivery of s0 
much corn or grass to a customary tenant, 
who cut down or prepared the said grass or 
corn, and received some part or small portion 
of it as a reward or gratuity. Cowell, 


LIBERA BATELEA. In old records, 
A. free boat; the right of having a boat to 
fish in a certain water; a species of free 
fishery. 


LIBERA CHASEA HABENDA, A 
judicial writ granted to a person for a frea 
chase belonging to his manor after proof 
made by inquiry of a jury that the same of 
right belongs to him, Wharton. 


LIBERA ELEEMOSYNA. In old En 
glishlaw. Freealms; frankalmoigne, Brack, 
fol. 276. 


LIBERA FALDA. In old English law, 
Frank fold; free fold; free foldage. 1 Leon. 
10 


LIBERA LEX. Inold English law. 
Free law; frank law; the law of the land. 
The law enjoyed by free and lawful men, as 


- 


c 


LIBERA PISCARIA 7 
uished from such men as have lost the 
efit and protection of the law in conse- 
ence of crime, Hence this term denoted 
the statis of aman who stood guiltless be- 
fore the law, and was /ree, in the sense of be- 
ntitled to its full protection and benetit. 
Amittere liberam legem (to lose one's free 
Taw) was to fall (rom that status by crime or 
infamy. See Co. Litt. 940. 


LIBERA PISCARIA. In old English 
law. A free fishery. Co. Litt. 122c. 


LIBERA WARRENA. 
law. Free warren, (q. ¥.) 


LIBERAM LEGEM AMITTERE. To 
lose one’s free law, (called the villainous judg- 
ment,) to become discredited or disabled as 
juror and witness, to forfeit goods and chat- 
tels and lands for life, to have those lands 
wasted, houses razed, trees rooted up, and 
one’s body committed to prison. It was an- 
ciently pronounced against conspirators, but 
is now disused, the punishment substituted 
being fine andimprisonment. Hawk. P. C. 
61, c Ixxii., s. 9; 3 Inst. 221. 


LIBERARE. In the civillaw. Tofree 
or set free; to liberate; to give one his liber- 
, ty. Calvin. 
In old English law. To deliver, trans- 
fer, or hand over. Applied to writs, panels 
of jurors, ete. Bract. fols. 116, 176d. 


In old English 


Liberata pecunia non liberat offer- 
t eutem. Co. Litt. 207. Money being re- 
} stored does not set free the party offering. 
| 


HH LIBERATEH, In old English practice. 
An original writ issuing out of chancery to 
the treasurer, chamberlains, and barons of 
the exchequer, for the payment of any annual 
pension, or other sum. Reg. Orig. 193; 
Cowell. 

A writ issued to a sheriff, for the delivery 
of any lands or goods taken upon forfeits of 
Tecognizance. 4 Coke, 640. 

A writ issued to a gaoler, for the delivery 
of # prisoner that had put in bail for his ap- 
pearance. Cowell. 


LIBERATIO. In old English law. 
Livery; money paid for the delivery or use of 
a thing. 

In old Scotch law. Livery; afee given 
to a servant or otlicer. Skene. 

Money, meat, drink, clothes, etc., yearly 
given and delivered by the lord to his do- 
mesticservants. Blount. 


LIBERATION. In the eivillaw. The 
extinguishment of a contract, by which he 


15 


LIBERTIES 


who was bound becomes free or liberated. 
Woltf, Inst. Nat. $ 749. Synonymous with 
“payment.” Dig. 50, 16, 47. 


LIBERI. In Saxon lew. Freemen; 
the possessurs of allodial lands. 1 Reeve, 
Eng. Law, 5. 

In the civil law. Children. 
included “grandchildren.” 


LIBERTAS. 
lege; a franchise. 


LIBERTAS ECCLESIASTICA, 
Church liberty, or ecclesiastical immunity. 


The term 


Liberty; freedom; a privi- 


Gibertas est naturalis facultas ejus 
quod cuique facere libet, nisi quod de 
juro aut vi prohibetur. Co. Litt. 116. 
Liberty is that natural faculty which permits 
every one to do anything he pleases except 
that which is restrained by law or force. 


Libertas inestimabilis res est. Lib- 
erty is an inestimable thing; a thing above 
price. Dig. 50, 17, 106. 


Libertas non recipit sstimationom. 
Freedom does not admit of valuation. Bract 
fol. 14, 


Libertas omnibus rebus favorabilior 
est. Liberty is more favored than all things, 
[anything.] Dig. 50,17, 122. 


Libertates regalos ad coronam spec- 
tantes ex concessions regum 4 coronh 
exierunt. 2 Inst. 496. Royal franchises 
relating to the crown have emanated from 
the crown by grant of kings. 


LIBERTATIBUS ALLOCANDIS. A 
writ lying for a citizen or burgess, implead- 
ed contrary to his liberty, to have his privi- 
lege allowed. Reg. Orig. 262. 


LIBERTATIBUS EXIGENDIS IN 
ITINERE. An ancient writ whereby the 
king commanded the justices in eyre to ad- 
mit of an attorney for the defense of anoth- 
er’s liberty. Reg. Orig. 19. 


LIBERTI, LIBERTINI. In Boman 
law. Freedmen. There seems to have been 
some difference in the use of these two words; 
the former denoting the manumitted slaves 
considered in their relations with their for- 
mer master, who was now called their “pa- 
tron,” the latter term describing the status 
of the same persons in the general social 
economy of Rome. 


LIBERTICIDE. A destroyer of liberty. 


LIBERTIES. Privileged districts ex- it 
empt from the sheriff's jurisdiction. 


LIBERTINUM, ETC. 


Libertinum ingratum leges civiles in 
pristinam servitutem redigunt; sed le- 
ges Anglis semel manumissum semper 
liberum judicant. Co. Litt.137. Thecivil 
laws reduce an ungrateful freedman to his 
original slavery; but the laws of England 
segard & Man once manumitted as ever after 
free, ; 


LIBERTY, 1. Freedom; exemption from 
extraneous control. The power of the will, 
in its moral freedom, to follaw the dictates 
of its unrestricted choice, and to direct the 
external acts of the individual without re- 
straint, coercion, or control from other per- 
sons, 

Civil liberty is the greatest amount of ab- 
solute liberty which can, in the nature of 
things, be equally possessed by every citizen 
in astate. Bouvier. 

‘The term is frequently used to denote the 
amount of absolute liberty which is actually 
enjoyed by the various citizens under the 
government and laws of the state as admin- 
istered. 1 Bl. Comm. 125. 

Civil liberty is guarantied protection 
against interference with the interests and 
rights held dear and important by large 
classes of civilized men, or by all the mem- 
vers of a state, together with an effectual 
share in the making and administration of 
the laws, as the best apparatus to secure that 
protection. Lieb. Civil Lib. 24. 

Natural liberty is the right which nature 
gives to all mankind of disposing of their 
persons and property after the manner they 
judge most consistent with their happiness, 
on condition of their acting within the limits 
of the law of nature, and so as not to inter- 
fere with an equal exercise of the same rights 
by other men. Burlamaqui,c.3, § 15; 1 BI. 
Comm. 125, 

Personal liberty consists in the power of 
locomotion, of changing situation, of remov- 
ing one’s person to whatever place one’s in- 
clination may direct, without imprisonment 
or restraint unless by due course of law. 1 
Bl. Comm. 134. 

Political liberty is an effectual share in the 
making and administration of the laws. Lieb. 
Civil Lib. 

2. The word also means a franchise or per- 
sonal privilege, being some part of the sover- 
eign power, vested in an individual, either 
by grant or prescription. 

3. In a derivative sense, the term denotes 
the place, district, or boundaries within which 
a special franchise is enjoyed, an immunity 
claimed, ¢ a jurisdiction exercised. In this 


716 


rt 


SS ee 
————— 


LIBERUM SERVITIUM 


sense, the term-is commonly used in the plu- 
ral; as “the liberties of the city,” “the north- 
ern liberties of Philadelphia.” 


LIBERTY OF SPEECH. Freedom ac. 
corded by the constitution or laws of a state 
to express opinions and facts by word of 
mouth, uncontrolled by any censorship or re- 
strictions of government. 


LIBERTY OF THE PRESS. The right 
to print and publish the truth, from good 
motives and for justifiable ends. 3 Johna, 
Cus. 394. The right freely to publish what- 
ever the citizen may please, and to be pro- 
tected against any responsibility for so doing, 
except so faras such publications, from their 
blasphemy, obscenity, or scandalous charac- 
ter, may be a public offense, or as by their 
falsehood and malice they may injuriously 
xffect the standing, reputation, or pecuniary 
interests of individuals, Cooley, Const. Lim. 
p- 422. Itis said to consist in this: “That 
neither courts of justice, nor any judges 
whatever, are authorized to take notice of 
writings intended for the press, but are con- 
fined to those which are actually printed.” 
De Lolme, Eng. Const, 254. 


LIBERTY OF THE RULES. A priy- 
ilege to go ont of the Fleet and Marshalsea 
prisons within certain limits, and there re- 
side. Abolished by 5 & 6 Vict. c. 22. 


LIBERTY TO HOLD PLEAS. The 
liberty of having a courtofone’sown. Thus, 
certain lords had the privilege of holding 
pleas within their own manors. 


Liberum corpus nullam recipit esti- 
mationem. Dig. 9, 8, 7. The body of a 
freeman does not admit of valuation. 


Liberum est cuique apud se explorare 
an expediat sibi consilium. Every oneis 
free to ascertain for himself whether a recom- 
mendation is advantageous to his interests. 
6 Jolins. 181, 184, 


LIBERUM MARITAGIUM. In old 
English law, Frank-marriage. Bract. fol. 


2. 
LIBERUM SERVITIUM. Free sery- 
jee. Service of a warlike sort by a feudatory 


tenant; sometimes called “servitium liberum 
armorum.” Jacob. 

Service not unbecoming the character of a 
freeman and a soldier to perform; as to serve 
under the lord in his wars, to pay a sum of 
money, and the like. 2 Bl. Comm. 60. 


‘LIBERUM SOCAGIUM 


UM SoOcAGIUM. 
Free socage, Bract. fol. 207; 2 


nm pleading. A plea of freehold. A plea 
the defendant in an action of trespass to 
property that the locus in guo is his free- 
held, or that of a third person, under whom 
be acted. 1 Tidd, Pr. 645. 


TISLAC. In Saxon law. Witchcraft, 
particulaz!y that king which consisted in the 
conipounding and administering of drugs and 
philters. 


LIVLACUM. In Saxon law. Bewitch- 
ig any person; also a barbarous sacrifice, 


LIBRA. Inold English law. A pound; 
~ alw assum of money equal to a pound ster- 
Hass. 


LIZR 1 ARSA. Inold Englishlaw. A 
pond burned; that is, melter, or assayed by 
melting, to test its purity. Libre arse et 
pensatr, pounds burned and weighed. A 
frequent expression in Domesday, to denote 
the purer coin in which rents were paid. 
Spelman; Cowell. 


LIBRA NUMERATA. A pound of 
money counted instead of being weighed. 
Spelman. 


LIBRA PENSA. A pound of money by 
weight. It was usual in former days not only 
toscll the money, but to weigh it; because 
many cities, lords, and bishops, having their 
mints, coined money, and often very bad 
money, two, for which reason, though the 
pound consisted of 20 shillings, they weighed 
it. Ene. Lond. 


LIBRARIUS. 
ar or amanuensis; a copyist. 
92. 


LIBRATA TERRA. A portion of 
ground containing four oxgangs, and every 
oxgang fourteen acres. Cowell. This is the 
same with what in Scotland was called 
“poundland” of ald extent. Wharton. 


LIBRIPENS. In Roman law. A 
weigher or balance-holder. The person who 
held a brazen balance in the ceremony of 


In Roman law. <A wril- 
Dig. 50, 17, 


emancipation per ws et libram. Inst. 2, 
10, 1. 
Librorum appellatione continentur 


omnia volumina, sive in charta, sive in 
membrana sint, sive in quavis alia 


t 


717 


LICENSEE 


Tn old En- | materia. Under the namecf books are con- 


tained all volumes, whether upon paper, or 
parchment, or any other material. Dig. 32, 
52, pr. 


LICENCIADO. In Spanish law. An 
attorney or advocate; particularly, a person 
admitted to the degree of “Licentiate in Ju- 
risprudence” by any of the literary universi- 
ties of Spain, and who is thereby authorized 
to practice in all the courts. Eseriche. 


LICENSE. In the law of contracts. 
A permission, accorded by a competent au- 
thority, conferring the right to do some act 
which without such authorization would be 
illegal, or would bea trespass oratort. Also 
the written evidence of such permission. 

In real property law. An authority to 
doa purticular act or series of acts upon an- 
other’s land without possessing any estate 
therein. Also the written evidence of au- 
thority so accorded. 

Tt is distinguistied from an “ensement, ” which 
impiies an interest in the land to be affected, and a 
“lease,” or right to take the profits of land. It 
may be, ho-vever, and often is, coupled with a grant 
of some interest in the land itself, or right to take 
the profits. 1 Washb, Real Prop. *398, 

In pleading. A plea of justification to 
an action of trespass that the defendant was 
authorized by the owner of the freeliold to 
commit the trespass complained of. 


In the law of patents. <A wrilten au- 
thority granted by the owner of a patent to 
another person empowering the latter to 
make or use the patented article for a limited 
period or in a limited territory. 

In international law. Permission 
granted by a belligerent state to ita own sub- 
jects, or fo the subjects of the enemy, to car- 


| ryona trade interdicted by war. Wheat. Int. 


Law, 447. 

Marriage license. A marriage license is 
an authority enabling two persons to be mar- 
ried. 


LICENSED VICTUALLER. A term 
applied, in England, to all persons selling 
any kind of intoxicating liquor under a 
license from the Justices of tha peace, 
Wharton, 


LICENSEE. A person to whom a license 
has been granted. 

In patent law. Ona who has had trans. 
ferred to him, either in wriling or orally, a 
less or different interest than either the in- 
terest in the whole patent, or an undivided 
part of such whole interest, or an exelusive 
sectional interest. 4 Biatehf. 211. 


LICENSING ACTS 


LICENSING ACTS, This expression 
is applied by Hallam (Const. Hist. c. 13) to 
acts of parliament for the restraint of print- 
ing, except by license. It muy aiso be ap- 
plied to any act of parliament passed for the 
purpose of requiring a license for doing any 
act whatever. But, generally, when we 
speak of the licensing acts, we mean the acts 
Tegulating the sale of intoxicating liquors. 
Mozley & Whitley. 


LICENSOR. The person who gives or 
grants a license. 


LICENTIA CONCORDANDI. Lat. 
In old practice and conveyancing. License 
or leave to agree; one of the proceedings on 
levying a fine of lands. 2 Bl. Comm. 350. 


LICENTIA LOQUENDI. Lat. In old 
practice. Leave to speak, (é e, with the 
plaintiff;) an imparlance; or rather leave to 
imparl. 3 BL Comin, 299. 


LICENTIA SURGENDI. Lat. In old 
English practice. License to arise; permis- 
sion given by the court to a tenant in a real 
action, who had cast an essoin de malo /ecti, 
to arise out of his bed, which he could not 
do without such permission, and after being 
viewed by four knights appointed for the 
purpose. Bract. fol. 355. 


LICENTIA TRANSFRETANDI. Lat. 
A writ or warrant directed to the keeper of the 
port of Dover, or other seaport, commanding 
him to let such persons pass over sea as have 
obtained the royal license thereunto. Reg. 
Orig. 193. 


LICENTIATE. One who has license to 
practice any art or faculty. 


LICENTIOUSWESS. The indulgence 
of the arbitrary will of the individual, with- 
out regard to ethics or law, or respect for the 
rights of others. In this it differs from 
“liberty;” for the latter term may properly 
be used only of the exercise of the will in its 
morai freedom, with justice to all men and 
obedience to the laws, 

In a narrower and more technical sense, 
the word is equivalent to lewdness or lascivi- 
ougness. 


LICHRE. Lat. To be lawful; to be al- 
lowed or permitted by law. Carvin. 


LICERE£, LICERI. 
law. 
it. 


Lat. In Roman 
To offer a price for a thing; to bid for 


718 


LICKING OF THUMBS 


LICHT. Lat. From the verb “vicere,” 
(g. 2.) Although; notwithstanding. Im- 
porting, in this sense, a direct allirmation. 

Also, it is allowed, it is permissible. 


Licet dispositio de interesse futura 
sit inutilis, tamen potest fieri declaratio 
preecedens que sortiatur effectum, in- 
terveniente novo actu. Although tha 
grant of a future interest be inoperative, 
yet a declaration precedent may be made, 
which may take effect provided a new act ins 
tervene. Bac. Max. pp. 60, 61. reg. 14; 
Broom, Max. 498. 


LICET S#PIUS REQUISITUS. (Al 
though often requested.) In pleading. A 
phrase used in the old Latin forms of declara- 
tions, and literally translated in the modern 
precedents. Yel. 66; 2 Chit, Pl. 90; 1 Chit, 
Pl. 331. The eluuse in a declaration which 
contains the general averment of a request. 
by the plaintiff of the defendant to pay the 
sums Cluimed is still called the “licet sepius 
reqiisitus.” 


Licita bene miscentur, formula nisi 
juris obstet. Lawful acts [done by several 
authorities] are well mingled, [i. e., become 
united or consolidated intv one good act, J] un- 
less some form of law forbid. Bac. Max. p. 
94, reg, 24, 


LICITACION. In Spanish law. The 
offering for sale at public auction ofan estate 
or property held by co-leirs or joint proprie 
tors, which cannot be divided up without det 
riment to the whole. 


LICITARE. Lat. In Roman law. To 
offer a price at a sale; to bid; to bid often; te 
make several bids, one above another. Cal- 
yin. 


LICITATION. In the civil law. An 
offering for sale to the highest bidder, or to 
him who will give most for a thing. An act 
by which co-heirs or other co-proprietors of a 
thing in common and undivided between 
them put it to bid between them, to be ad 
judged and to belong to the highest and last 
bidder, upon condition that he pay to each of 
his co-proprietors a part in the price equal to 
the undivided part which each of the said co- 
proprietors had in the estate Uctied, before 
the adjudication. Poth. Cont. Sale, nn. 516, 
638., 


LICITATOR. In Roman law. 
at a sale. 


LICKING OF THUMBS. An ancient 
formality by which bargains were complete 


A bidder 


LIDFORD Law 


DFORD LAW. A sort of lynch law, 
ya person was first punished and then 
tried. Wharton. 


Iz. To aubsist; to exist; to be sus- 
able; to be proper or available. Thus 
phrase “an action will not Jie” means 
mab an action cannot be sustained, or that 
there is no ground upon which to found the 
action. 


LIE IN FRANCHISE. Property is 
‘said to “lie in franchise” when it is of such 
a nature that the persons entitled thereto 
_ may seize it without the aid of a court; e. g., 
wrecks, waifs, estrays. 


IIH IN GRADMP. Incorporeal heredit- 
ginents are said to “lie in grant;” that is, 
they pass by force of the grant (deed or char- 
ter) without livery. 


LIE IN LIVERY. A term applied to 
corporeal hereditaments, freeholds, etc., sig- 
nifying that they pass by livery, not by the 
mere force of the grant. 


LIE IN WAIT. 


LIE TO. To adjoin. A coltage must 
have had four acres of land laid toit. See 
2 Show. 279. 


LIEFTENANT. An old form of “lieu- 
tenant,” and stil] retained us the vulgar pro- 
nunciation of the word. 


LIEGH. In feudal law. Bound by a 
feudal tenure; bound in allegiance to the 
lord paramount, who owned no superior. 

In old records. Full; absolute; perfect; 
pure. Liege widowhood was pure widow- 
hood. Cowell. 


LIEGE HOMAGE. Homage which, 
when performed by one sovereign prince to 
another, included fealty and services, as op- 
posed to simple homage, which was a mere 
acknowledsment of tenure. (1 Bi. Comm. 
367; 2 Steph. Comm. 400.) Mezley & Whit- 
ley. 


LIEGE LORD. A sovereign; a superior 
lord. 


LIEGs POUSTIE. In Scotch -law. 

That state of health which gives a person 

full power to dispose of, mortis eausi or oth- 
erwise, his heritable property. Bell. 

A deed executed at the time of such a state 
of health, as opposed to a death-bed convey- 
ance, 

The term seems to be derived from the 
Latin “legitima potestas.” 


See Lyrne oy WAIT. 


719 


LIEN 


LIEGEMAN. Hethat oweth allegiance. 
Cowell. 


LIEGER, or LEGER. A resident am- 
bassador. 


LIEGES, or LIEGE PEOPLE. Sub- 


jects. 


LIEN. A qualified right of property which 
a creditor has in or over specific property of 
bis debtor, as security for the debt or charge 
or for perforimance of some act. 

In every case in which property, either 
real or personal, is charged with the payment 
of a debt or duby, every such charge may he 
denominated a lien onthe property. Whitak. 
Liens, p. 1. 

A lien is a charge imposed upon specific 
property, by which it is made security for the 
performance of an act. Code Civil Pree. Cal. 
§ 1180. 

Lien is the right of one man to retain property 
in his possession belonging to another, until cer 
tain demands of the party ia possession are satis- 
fied. 26 Wend. 467. And sea i Hilt. 292. 

Lien is familiarly understood te be a binding or 
attachment of the thing seoken of, for the benefit 
of him who is entitled thevets % Hawlks, 309. 

In the Scottish law, che doctrine of lien is 
known by the name of “retention,” and that 
of set-off by the name of “compensation.” 

Liens are either particular, as a right to 
retain a thing for some charge or claim grow- 
ing ont of, or connected with, the identical 
thing; or general, as a right to retaina thing 
not only for such charges and claims, but 
also for a general balance of accounts between 
the parties in respect to other dealings of the 
like nature. 

Liens are also either conventional or by op- 
eration of law. The former is the ease 
where the lien is raised by the express agree- 
ment and stipulation of the parties, in cir- 
cumstances where the law alone would not 
create a lien from the-mere relation of the 
parties or the details of their transaction. 
The latter is the case where the law itself, 
without the stipulation of the parties, raises 
a lien, a3 an implication or legal consequence 
from the relation of the parties or the cir- 
cumstances of their dealings. Liens of this 
species may urise either under the rules of 
common law or of equity or under a statute. 
In the first case they are called “common-law 
liens;” in the second, “equitabie liens;” in 
the third, “statutory liens.” 

Liens are either possessory or charging; 
the former, where the creditor has the right 
to hold possession of the specific property un- 
til satisfaction of the debt; the latter, where 


LIEN 


the debt is a charge upon the specific prop- 
erty although it remains in the debtor’s pos- 
session. 


Equitable lions are such as exist in equi- 
ty, and of which courts of equity alone take 
cognizance. 

A lien is neither a jus in re nor a jus ad 
rem. It is not property in the thing, nor 
does it constitute a right of action for the 
thing. It more properly constitutes a charge 
upon the thing. Lquitable liens most com- 
monly grow ont of constructive trusts. 
Story, Eq. Jur. § 1215. 

Maritime liens. Maritime liens do not 
include or require possession. The word 
“lien” ig used in maritime law notin the 
strict legal sense in which we understand it 
in courts of common law, in which caso there 
could be no lien where there was no posses- 
sion, actual or constructive, but to express, 
as if by analogy, the nature of claims which 
neither presuppose nor originate in posses- 
sion. 22 Eng. Law & Kg. 62. 

The civil law lien. The civil law em- 
braces, under. the head of “mortgage and 
privilege,” the peculiar securities which, in 
the common and maritime law and equity, 
are termed “liens.” 

As to BAILEr’s Lien, Mecnanto’s Lren, 
and VENDOR’s LIEN, see those titles. 


LIEN OF A COVENANT. The com- 
mencement of a covenant stating the names 
of the covenantors and covenuniees, and the 
character of the covenant, whether joint or 
several. Wharton. 


LIENOR. The person having or owning 
a lien; one who has aright of lien upon prop- 
erty of another. 


LIEU. Fr. Place; room. It is only used 
with “in;” in (éew, insteud of. Ene. Lond. 


LIEU CONUS. L.Fr. Inold pleading. 
A known place; a place well known and gen- 
erally takeu notice of by those who dwell 
aboutit, as acastle, a manor, ete. Whishaw; 
1 Ld. Raym. 259. 


LIEUTENANCY, COMMISSION OF. 
See COMMISSION OF ARRAY. 


LIEUTENANT. 1. A deputy; substi- 
tute; an officer who supplies the place of 
another; one acting by vicarious authority. 
Etywologically, one who holds the post or of- 
fice of another, in the place and stead of the 
laiter. 

2. The word is used in composition as part 
of the title of several civil and military of- 


720 


LIFE INSURANCE 


ficers, who are subordinate to others, and 
especially where the duties and powers of the 


higher officer may, in certain contingencies, — 
devolve upon the lower; as lieutenant goy- 


ernor, lieutenant colonel, ete. See the follow- 
ing titles. 

3. In the army, a lieutenant is a commis- 
sioned officer, ranking next below a captain, 
In the United States navy, he is an officer 
whose rank is intermediate between that of 
an ensign and thatofa lieutenant commands 
er. In the British navy, his rank is next be 
low that of a commander. 


LIBUTENANT COLONEL. An of: 
ficer of the army whose rank is above thatof 
&@ major and below that of a colonel. 


LIEUTENANT COMMANDER. A 
commissioned officer of the United States 
navy, whose rank is above that of lieutenant 
and below that of commander. 


LIEUTENANT GENERAL. An of: 
ficer in the army, whose rank is above that 
of major general and below that of “general 
of the army.” In the United States, this 
rank is not permanent, being usually created 
for special persons or in times of war. 


LIEUTENANT GOVERNOR. In 
English law. <A deputy-governor, acting 
as the chief civil officer of one of several 
colonies undera governor general. Webster. 

In American law. An officer of a state, 
sometimes charged with special duties, but 
chiefly important as the deputy or substitute 
of the governor, acting in the place of the 
governor upon the latter’s death, resignation, 
or disability. 


LIFE. That state of animals and plants, 
or of an organized being, in which its natural 
functions and motions are periormed, or in 
which its organs are capable of performing 
their functions. Webster. 

The sum of the forces by which death is 
resisted. Bichat. : 


LIFE-ANNUITY. An engagement to 
pay an income yearly during tie life of some 
person; also the sum thus promised. 


LIFE-ESTATE. An estate whose dura- 
tion is limited to the life of the party holding 
it, or of some other person; a freehold estate, 
not of inheritance. 


LIFE INSURANCE. That kind of in- 
surance in which the risk contemplated is the 
death of a particular person; upon which 
event (if it occurs within a prescribed term, 
or, according to the contract, whenever it oc- 


| 


LIFE-INTEREST 


curs) the insurer engages to pay a stipulated 
sim to the legal representatives of such per- 
gon, or to a third person having an insurable 
interest in the life of snch person, 


LIFE-INTHEREST. Aclaim orinterest, 
not amounting to ownership, and limited by 
aterm of life, either that of the person in 
whom the right is vested or that of another. 


LIFE-LAWD, or LDIFE-HOLD, Land 


held on a lease for lives. 


LIFE PEERAGE. Letters patent, con- 
ferring the dignity of baron for life only, do 
not enxble the grantee to sit and vote in the 
house of lords, not even with the usual writ 
of summons to the house. Wharton. 


LIFE POLICY. A policy of life insur- 
ance; a policy of insurance upon the life of 
an individual. 


LIFE-RENT. In Scotch law. An es- 
tate for life; a right to the use and enjoy- 
ment of an estate or thing for one’s life, but 
without destruction of its substance. They 
are either leyed, such as terce and curtesy, 
(q. a) or conventional, t. e, created by act 
of the parties, Conventional life-renis are 
either stmple, where the owner of an estate 
grants a life-interest to another, or by reser- 
gation, where the owner, in conveying away 
the fee, reserves a life-estate to himself. 


LIFE-RENTER. In Scotch law. A 
tenant for life without waste. Bell, 


LIFT. To raise; to take up. To “lift” 
4a promissory note is to discharge its obliga- 
tien by paying its amount or substituting an- 
other evidence of debt. To “lift the bar” of 
the statute of limitations, or of an estoppel, 
is fo remove the obstruction which it inter- 
poses, by some sufficient act or acknowledg- 
ment, 


LIGA. In old European law. A league 
or confederation. Spelman. 


LIGAN, LAGAN. Gocds cast into the 
aéa tied to a buoy, so that they may be found 
again by the owners, are so denominated. 
When goods are cast into the sea in storms 
or shipwrecks, and remain there, without | 
coming to land, they are distinguished by the | 
barbarous iiames of “jetsam,” “flotsam,” 
and “ligan.” 5 Coke, 108; Harg. State Tr. 
48; 1 Bl, Comm. 292. 


LIGAREH. To tle or bind, Bract. fol. 
8600. 
To enter intoa league or treaty. 
AM. DICI. LAW-—46 


Spelman, 


721 


LIGHTERAGE 


LIGHA. In old English Jaw. A liege- 
woman; a female subject. Reg. Orig. 3125. 


LIGEANCE. Allegiance; the faithful 
obedience of a subject to his sovereign, of a 
citizento his government. Also, derivative- 
ly, the territory of a state or sovereignty. 


LIGHANTIA. 


Lat. Ligeance; alle- 
giance, = 


Ligeantia est quasi lexis essentia; est 
vineulum fidei. Ca. Litt,129. Allagianece 


is, as it were, the essence of law; it is the . 


chain of faith, 


Ligeantia naturalis nullis claustris 
coercetur, nullis metis refreenatur, nullis 
finibus premitur. 7 Coke, 10. Natural 
allegiance is restrained by no barriers, reined 
by no bounds, compressed by no limits. 


LIGEAS. Im old records. 


LIGHT. A window, or opening in the 
wall for the admission of light. Also a priv- 
lege or easement to haye light admitted into 
one’s building by the openings made for that 
purpose, without obstruction or obscuration 
by the walls of adjacent or neighboring struct- 
ures, 


LIGHT-HOUSE. A structure, usually 
in the form of a tower, containing signal 
lights for the guidance of vessels at nivht, at 
dangerous points of a coast, shoals, ete. 
They are usually erected by government, and 
subject to governmental regulation, 


LIGHT-HOUSE BOARD, A commis- 
sion authorized by congress, cousisting of 


aA liege. 


‘two officers of the navy, two oficers of the 


corps of engineers of the army, and two civil- 
inns, together with an officer of the navy and 
an officer of engineers of the army as secre- 
turies, atlached to the office of the secretary 
of the treasury, at Washington, and charged 
with superintending the construction and 
management of light-honses, light-ships, and 
other maritime signais for protection of com- 
merece. Abbott. 


LIGHT-SHIP, LIGHT-VESSEL. <A 
vessel serving the purpose of a light-hougs, 
usually at a place where the latter could not 
weil be built. 


LIGHTER. A small vessel used in load- 
ing and unloading ships and steamers, 


LIGHTERAGE,. The business of trans- 
ferring merchandise to and from vessela by 
means of lightera; also the compensation or 
price demanded for such service. 


LIGHTERMAN 


LIGHTERRMAN, The master or owner 
of a lighter. He is liable as a common 
carrier. 


LIGHTS. 1. Windows; openings in the 
wall of a house for the admission of light. 

2. Signal-lamps on board a vessel or at 
particular points on the coast, required by the 
navigation laws to be displayed at night. 


LIGIUS. A person bound to another by 
a solemn tie or engagement. Now used to 
express the relation of a subject to his sov- 
ereign. 


Ligna et lapides sub “armorum” ap- 
pellatione non continentur. Sticks and 
stones are not contained under the name of 
“arms.” Bract. fol. 1440. 


LIGNAGIUM. A right of entting fuel 
in woods; also a tribute or payment due for 


the same. Jacob, 

LIGNAMINA. Timber tit for building. 
Du Fresne. 

LIGULA. In old English law. A copy, 


exemplification, or transcript of a court roll 
or deed. Cowell. 


LIMB. A member of the human body. 
In the phrase “life and limb,” the latter term 
appears to denote bodily integrity in general; 
but in the definition of “mayhem” it refers 
only to those members or parts of the body 
which may be useful to a manin fighting. 1 
Bl. Comm. 130. 


LIMENARCHA. In Roman law. An 
officer who had charge of a harbor or port. 
Dig. 50, 4, 18, 10; Cod. 7, 16, 38. 


LIMIT, o To mark out; to define; to 
fix the extent of. ‘Thus, to limit an estate 
meuns to mark out or to define the period of 
its duration, and the words employed in deeds 
for this purpose are thence termed “wards of 
limitation,” and the act itself is termed 
“limiting the estate.” Brown. 


LIMIT, 2. <A bound; a restraint; a cir- 
cumscription; a boundary. 22N. Y. 429. 


LIMITATION, Restriction or circum- 
spection; settling an estate or property; a 
certain time allowed by a statute for litiga- 
tion. 

In estates. A limitation, whether made 
by the express words of the party or existing 
in intendment of law, circumseribes the con- 
tinuance of time for which the property is to 
be enjoyed,and by positive and certain terms, 
or by reference to some event which possi- 


722 


LIMITED ADMINISTRATION 


bly may happen, marks the period at which 
the time of enjoyment shall end. Preat, Es- 
tates, 25. 


LIMITATION IN LAW. A limitation 
in law, or an estate limited, is an estate to 
be holden only during the continuance of the 
condition under which it was granted, upon 
the determination of which the estate vests 
immediately in him in expectancy. 2 Bl. 
Comm. 155. 


LIMITATION OF ACTIONS. The 
restriction by statute of the right of action 
to certain periods of time, after the accruing 
of the cause of action, beyond which, except 
in certain specified cases, it will not be al- 
lowed. 

Also the period of time so limited by law 
for the bringing of actions. 


LIMITATION OF ASSIZE. In old 
practice. A certain time prescribed by stat 
ute, within which a man was required to 
allege himself or his ancestor to Lave been 
seised of lands sued for by a writ of aassize. 
Cowell. 


LIMITATION OF ESTATE. The re 
striction or circumscription of an estate, in 
the conveyance by which it is granted, in re 
spect to the interest of the grantee or its du- 
ration; the specific curtailment or confine- 
ment of an estate, by the terms of the grant, 
so that it cannot endure beyond a certain 
period or a designated contingeney. 


A conditional limitation (in the generic 


| sense of the term) is where one estate is lim- 


ited to end and another to commence on the 
doing of some act or the happening of some 
event. 

A collateral limitation is one which 
marks the extreme duration of an estate, and 
at the same time indicates an uncertain event, 
the happening of which wiil put an end to it 
before the expiration of that period. Sweet. 


LIMITATION, WORDS OF. Those 
which operate by reference to, or in connec. 
tion with, other words, and extend or modify 
an estate given by such other worda, as 
“heirs,” “heirs of the body.” 


LIMITED. Restricted; bounded; pre- 
scribed. Confined within positive bounds; 
restricted in duration, extent, or scope. 


LIMITED ADMINISTRATION. An 
administration of a temporary character, 
granted for a particular period, or for a spe 
cial or particular purpose, Holthouse. 


LIMITED COMPANY 


LIMITED COMPANY. A company in 
whieh the liability of each shareholder is 
limited by the number of shares he has tak- 
en, so that he cannot be called on to contrib- 
ute beyond the amount of his shares, In 
England, the memorandum of association of 
BUG company Muay provide that the liability 
of the directors, manager, or managing di- 
rector thereof shall be unlimited. 30 & 31 
Vict. ¢, 131; 1 Lindl, Partn. 383. Mozley & 
Whitley. 


LIMITED DIVORCE. Adivorce from 
bed and board; or a judicial separation of 
husband and wife not dissolving the mar- 
riage tie. 


LIMITED EXECUTOR. An executor 
whose appointment is qualified by limitations 
as to the time or place wherein, or the sub- 
ject-matter whereon, the oifice is to be exer- 
cised; as distinguished from one whose ap- 
pointment is absolute, 7. e., certain and im- 
mediate, without any restriction in regard 
to the testator’s effects or limitation in point 
of time. 1 Williams, Ex’rs, 249, et seq. 


LIMITED FEE. An estate of inherit- 
ance in lands, which is clogged or confined 
with some sort of condition or qualification. 
Such estates are base or qualified fees, con- 
ditional fees, and fees-tadi. The term is 
opposed to “fee-simple.” 2 Bi. Comm. 109. 


LIMITED JURISDICTION. This 
term is ambiguous, and the books sometimes 
use it without due precision. It is some- 
times carelessly employed instead of “spe- 
cial.” The true distinction between courts 
is between such as possess a general and 
such as have only a special jurisdiction for 
a particular purpose, or are clothed with spe- 
cial powera for the performance, 18 N. J. 
Law, 73. 


LIMITED LIABILITY. The liability 
of the members of a joint-stock company 
may be either unlimited or limited; and, if 
the latter, then the limitation of liability is 
either the amount, if any, unpaid on the 
shares, {in which case the limit is said to be 


“by shares,”) or such an amount as the | 


members guaranty in the event of the com- 
pany being wound up, (in which case the 
limit is said to be “by guaranty.”) Brown. 

LIMITED OWNER. A tenant forlife, 
in tail, or by the curtesy, or other person not 
having a fee-simple in his absolute dispasi- 
tion. 

LIMITED PARTNERSHIP. A part- 
nership consisting of one or more general 


723 


LINEA TRANSVERSALIS 


partners, jointly and severally responsible as 
ordinary partners, and by whom the businegs 
is condnetud, and one or more special part 
ners, contributing in cash payments a spe 
cific sui as capital to the cummon stock, 
and who are not liable for the debts of the 
partnership beyond the fund so contributed. 


| 1 Rev. St. N. Y. 764. 


LIMOGIA. Enamel. Du Cange. 


LINARIUM, In old English law. A 
flax plat, where flax is grown. Du Cange. 


LINCOLN’S IWN. An inn of court. 
See Inns oF CouRt. 


LINE. In descents. The order or se 
ries of persons who have descended one from 
the other or all from a common ancestor, con- 
sidered us placed ina line of succession in the 
order of their birth, the line showing the con- 
nection of all the blood-relatives. 


Measures, A line is a lineal measure, 
containing the one-twelfth part of an inch. 


In estates. The boundary or line of di- 
vision between two estates. 


LINEA. Lat. 
See Ling. 


LINEA OBLIQUA. In the civil law. 
The oblique line. More commonly termed 
“linea transversalis,” (q. 0.) 


A line; line of descent. 


LINEA RECTA. The direct line; the 
vertical line. In computing degrees of kin- 
dred and the succession to estates, this term 
denotes the direct line of ascendants and de- 
scendants. 

Where a person springs from another im- 
mediately, or mediately through a third per- 
son, they are said to be in the direct line, 
(tinea recta,) and are called “ascendants” 
und “descendants.” Maekeld. Rem. Law, 
§ 129, 


Tinea recta est index sui et obliqui; 
lex est linea recti. Co. Litt. 158. <A right 
line is a test of itself, and of an oblique; law 
is a line of right. 


Linca recta semper prefertur trans- 
versali, The right line is always preferred 
to the collateral. Co. Litt. 10; Broom, Max. 
529. 


LINEA TRANSVERSALIS. A collat- 
eral, transverse, or oblique line. Wheretwo 
persons are descended from a third, they are 
called “collaterals,” and are said to be re- 
lated in the collateral line, (linea traneversa 
or obligua.) 


LINEAGE 


LINEAGE. Race; progeny; family, as- | 


sending or descending. 


LINEAL. ‘That which comes in a line; 
especially a direct line, as from father to son. 
Collateral relationship is not called “lineal,” 
though the expression “collateral line,” is net 
unusual. : 


LINEAL CONSANGUINITY. That 
kind of consanguinity which subsists between 


persons of whom one is descended in a direct | 


line from the other; as between a particular 
person and his father, grandfather, great- 
grandfather, and so upward, in the direct as- 
eending line; or bebween the same person 
and his son, grandson, great-grandson, and 
so downwards in the direct descending line. 
2 Bl. Comm. 203. 


LINEAL DESCENT, Descent in a 
right line, as where an estate descends from 
ancestor to heir in one line of succession, as 
opposed to collateral descent. 


LINEAL WARRANTY. A warranty 
by an ancestor from whom the title did or 
might have come to the heir. 2 Bl. Comm. 
301; Rawle, Cov. 30. 


LINES AND CORNERS. In survey- 
ing and conveyancing. Boundary lines and 
their terminating points, where an angle is 
formed by the next boundary line. 


LINK, <A unit in a connected series; 
anything which serves to connect or bind to- 
gether the things which precede and follow 
it. Thus, wespeak of a “link in the chain 
of title.” 

LIQUERE. Lat. Inthe civillaw. To 
bo clear, evident, or satisfactory. When a 
judex waa in doubt how to decide a case, lie 
represented to the preetor, under oath, sili 
non liquere, (thatit was not clear to him,) and 
was thereupon discharged. Calvin, 


LIQUET. It is clear or apparent; it ap- 
pears. Satis liguet, it sufficiently appears. 
1 Strange, 412. 


LIQUIDATE. To adjust or settle an in- 
debtedness; to determine an amount to be 
paid; to clear up an account and ascertain 
the balance; to fix the amount required to 
satisfy a judgment. 

To clear away; to lessen; to pay. “To 
liquidate a balance means to pay it.” 8 
Wheat. 338, 362. 


LIQUIDATED. Ascertained; deter- 
mined; fixed; settled; made clear or manifest. 
Cleared away; paid; discharged. 


724 


LIS ALIGI PENDENS 


LIQUIDATED ACCOUNT, An ace. 
count whereof the amount is certain and 
fixed, either by the act and agreement of the 
parties or by operation of law; a sum which 
cannot be changed by the proof; it is so much 
or nothing; but the term does not necessari- 
ly refer to a writing. 1 Ga. 287. 


LIQUIDATED DAMAGES, Agreed or: 
settled damages; a specific sum of money ex- 
pressly stipulated by the parties to a bond or 
other contract, as the amount of damages to 
be recovered by either’ party for a breach of 
the agreement by the other. It is generally 
distinguished from a penalty. 


LIQUIDATED DEBT. A debt is liqui- 
dated when it is certain what is due and low 
much is due. 20 Ga, 562. 


LIQUIDATED DEMAND. A demand 
isa liquidated one if the amount of it has 
been ascertained—settled—by the agreement 
of the parties to it, or otherwise. 20 Ga. 53. 


LIQUIDATING PARTNER. The 
partner who upon the dissolution or insoly- 
ency of the firm, is appointed to settle tts 
accounts, collect assets, adjust claims, and 
pay debts. 


LIQUIDATION. The act or process of 
settling or making clear, fixed, and determi- 
nate that which before was uncertain or wn- 
ascertained. 

As applied to a company, (or sometimes to 
the affairs of an individual,) liquidation is 
used in a broad sense as equivalent to “ wind- 
ing up;” that is, the comprehensive provess 
of settling accounts, ascertaining and adjust- 
ing debts, collecting assets, and paying off 
claims. A|| 

LIQUIDATOR. A person appointed to | 
earry out the winding up of a company. | 


LIQUOR. This term, when used in stat- 
utes forbidding the saie of liquors, reters only 
to spirituous or intoxicating liquors. 18 N. 

J. Law, 311; 20 Barb. 246; 8 Denio, 407. 


LIQUOR-SHOP. A house where spirit- 
uous liquors are kept and sold, 6 Baxt. 534, 


LIRA. The name of anItalian coin, of 
the value of about eighteen cents. 


LIs. Lat. <A controversy or dispute; a 
suit or action at law. 


LIS ALIBI PENDENS. A suit pend- 
ing elsewhere. Tho fact that proceedings are 
pending between a plainliff and defendant 
in one court in respect to a given matter is 
frequently a ground for preventing the plain- 


LIS MOTA 


tiff from taking proceedings in another court 
against the same defendant for the same ob- 
ject and arising out of the same cause of 
action. Sweet. 


LIS MOTA. A controversy moved or 
begun. By this term is meant a dispute 
which has arisen upon 2 point or question 
which afterwards forms the issue upon which 
legal proceedings are instituted. After such 
controversy has arisen, (post litem motam,) 
it isheld, declarations as to pedigree, made by 
wembers of the family since deceased, are 
not adinissible. See 4 Camp. 417; 6 Car. & 
P. 560. 


LIS PENDENS. <A suit pending; that 
legal process, in a suit regarding lant, which 
amounts te legal notice to all the world that 
there is adisputeas tothe litle, In equity the 
filing of the bill and serving a subpoena cre- 
ales a dis pendens, except when statutes re- 
quire some record. Stim, Law Gloss. 

In the civil law. A suit pending. A 
suit was not said to be pending before that 
stage of it called “titis contesiatio,” (gq. v.) 
Mackeld. Rom. Law, § 219. Calvin. 


LIST. A docket or calendar of causes 


ready for trial or argument, or of motions 


ready for hearing. 


LISTED. Included in a list; put on a 
list, particularly on a list of taxable persons 
or property. 


LISTERS. This word is used in some of 
the states to designate the persons appointed 
fomak« liats of taxables. See Rev. St. Vt. 538, 


LITE PENDENTE. Lat. Pending the 
quit. Fleta, lib. 2, ¢. 54, § 23. 


LITEM SUAM FACERE. Lat. To 
make asuit hisown. Wherea judea, from 
partiality or enmity, evidently favored either 
of the parties, he was said litem suam 
Jacere, Calvin. 


LITHEA. Lat. A letter. 
a law, as distinguished from its spirit. 
LETTER, 


LITERA PISANA. The Pisan letter. 
A term applied to the old character in which 
the copy of the Pandects formerly kept at 
Pisa, in Italy, was written. Spelman, 


Tho letter of 
See 


LITER. Letters. <A term applied in 
ald English iaw to various instruments in 
writing, publie and private. 


LITERAS DIMISSORIZ, Dimissory 
letters, (g. 0.) 


725 


LITERAL PROOF 


LITERHE HUMANIORES. A tera in- 
eluding Greek, Latin, general philology, 
logic, moral philosophy, metaphysics; the 
name of the principal course of study in the 
University of Oxford. Wharton. 


LITERA MORTUA. Dead letters; 
fulfilling words of a statute. Lord Bacon 
observes that “there are in every statute cer- 
tain words which are as veins, where the life 
and blood of the statute cometh, and where 
all donbts do arise, and the rest are litere 
mortue@, fulfilling words.” Bae. St. Uses, 
(Works, iv. 189.) 


LITER PATENTES. Letters patent; 
literally, open letters. 


Liters patentes regis non erunt va- 
eue. 1 Bulst.6. The king’s letters patent 
shall not be void. 


LITERHE PROCURATORIA, In old 
English law. Letters procuratory; letters of 
procuration; letters of attorney. Bract. fals. 
40, 43. 


LITERH RECOGNITIONIS. In 
maritimes law. A bill of lading. Jac. Sea 
Laws, 172. 


Liters scriptsee manent. Written words 


last, 


LITERA SIGILLATA, In old En- 
glish law. Sealed letters. The return of a 
sheriff was so called. Fleta, lib. 2, c. 64, 
& 19. 


LITERAL. According to language; fol- 
lowing expression in words, A literal eun- 
struction of a document adheres closely to its 
words, without making differencea for ex- 
trinsic circumstances; a literal performance 
of a condition is one which complics exactly 
with its terms. 


LITERAL CONTRACT. In Roman 
law. A species of written contract, in which 
the formal act by which an obligation waa 
superinduced on the convention was an entry 
of the sum due, where it should be specifically 
ascertained, on the debit side of a ledger, 
Maine, Ane. Law, 320. 

A contract, the whole of the evidence of 
which is reduced te writing, and binds the 
party who subseribed if, although he has re- 
eeived no consideration. Lec. El. Dr. Rom. 
§ 887, 4 


LITERAL PROOF. In the civil jaw. iit 


Written evidence. 


LITERARY 


LITERARY. Pertaining to polite learn- 
ing; connected with thestudy or use of books 
and writings. 

The word “literary,” having no legal significa- 
tion, is to be taken in its ordinary and usual mean- 
ing. We speak of literary persons as learned, 
erudite; of literary property, as the productions 
of ripe scholars, or, at least, of professional writ- 
ers; of literary institutions, as those where the 
positive sciences are taught, or persons eminent 
for learning associate, for purposes connected with 
their professions. This we think the popular 
meaning of the word; and that it would not be 
properly used as descriptive of a school for the in- 
struction of youth. § Ind. 332. 


LITHRARY PROPERTY may be de- 
ascribed as the right which entitles an author 
and his assigns to all the use and profit of his 
composition, to which no independent right 
is, through any act or omission on his or 
their part, vested in another person. 9 Amer. 
Law Reg. 44. 


A distinction is to be taken between “literary 
property” (which is the natural, common-law right 
which a person has in the form of written expres- 
sion to which he has, by labor and skill, reduced 
his thoughts) and “copyright,” (which is a stat- 
utory monopoly, above and beyond natural prop- 
erty, conferred upon an author to encourage and 
reward a dedication of his literary property to the 
public.) Abbott, 


LITERATE. In English ecclesiastical 
law. One who qualifies himself for holy or- 
ders by presenting himself as a person ac- 
cormplished in classical learning, ete., not as 
a graduate of Oxford, Cambridge, ete. 


LITHERATURA. “Ad literaturam po- 
nere” means to put children to school. 
This liberty was anciently denied to those 
parents who were servile tenants, without 
the lord’s consent. The prohibition against 
the education of sons arose from the fear that 
the son, being bred to letters, might enter 
into holy orders, and so stop or divert the 
services which he might otherwise do as heir 
to his father. Paroch. Antiq, 401. 


LITERIS OBLIGATIO. In Roman 
jaw. The contract of 20men, which was con- 
stituted by writing, (seripiurd.) It was of 
two kinds, viz.: (1) A rein personam, when 
a transaction was transferred from the day- 
bovk (adversaria) into the ledger (codex) in 
the form of a debt under the name or heading 
of the purchaser or debter, (nomen,) and (2) 
@ persona, in persunam, where a debt already 
standing under one nomen or heading was 
transferred in the usual course of novatio 
from that nomen to another and substituted 
nomen. By reason of this transferring, these 
obligations were called “nomina transcrip ti- 


726 


LITIS CONTESTATIO 


tia.” No money was, in fact, paid to con: 
stitute the contract. If ever money was p 
then the nomen was arcarium, (i. 4., 8 Te 
contract, re contractus,) and not a noms 
proprium, Brown, 


LITIGANT. A party to a lawsuit; one 
engaged in litigation; usually spoken of act 
ive parties, not of nominal ones. 


LITIGARE. Lat. To litigate; to cary 
on a suit, (litem agere,) either as plaintiff 
defendant; to claim or dispute by action; to 
test or try the validity of aclaim by action. 


LITIGATE. To dispute or contend in 
form of law; to carry on a suit. 


LITIGATION. A judicial controversy. 
A. contest in acourt of justice, for the pur- 
pose of enforcing a right. 


LITIGIOSITY. In Scotch law. The 
pendency of a suit; it is a tacit legal prohi- 
bition of alienation, to the disappointment of 
an action, or of diligence, the direct object of 
which is fo obtain possession, or to acquire 
the property of a particular subject. Theef- 
fect of it is analogous to that of inhibition. 
Bell. 


LITIGIOUS. That which is the subject 
of a suit or action; that which is contested in 
a court of justice. In another sense, “litig- 
ious” signifies fond of litigation; prone to 
engage in suits. 


LITIGIOUS CHURCH. In ecclesias- 
tical law, achurch is said to be litigious 
where two presentations are offered to the 
bishop upon the same avoidance. Jenk, 
Cent. 11. 


LITIGIOUS RIGHT. In the civil law. 
A right which cannot be exercised without 
undergoing a lawsuit. Civil Code La. arts. 
918, 3556. 


LITIS STIMATIO. 
damages. 


The measure of 


LITIS CONTESTATIO. In the civil 
and canon law. Contestation of suit; the 
process of contesting a suit by the opposing 
statements of the respective parties; the pro- 
cess of coming to an issue; theattainmentof 
an issue; the issue itself, 

In tbe practice of the ecclesiastical 
courts. ‘The general anawer made by the 
defendant, in which he denies the matter 
charged against him in the libel. Halifax, 
Civil Law, b. 3, c. 11, no. 9. 


_ LITIS CONTESTATIO 


admiralty practice. The general 
2 Browne, Civil & Adm. Law, 358, 
d note. 


wnership, control, or direction ofasuit. A 
on of law by which the employment of 

an attorney or proctor (procurator) in a suit 
_ was authorized or justified, he being supposed 

to become. by the appointment of his princi- 
_ pal (doaminus) or client, the dominus litis. 
einece. Elem. lib. 4, tit. 10, §§ 1246, 1247. 


Litis nomen omnem actionem sig- 
hificat, sive in rem, sive in personam 
sit. Co, Litt.292. A lawsuitsignifies every 
action, whether it be in rem or in personam. 


LITISPENDENCE. An obsolete term 
for the time during which a lawsuit is 
going on. 


LITISPENDENCIA. In Spanish law. 
Litispendency. The condition of a suit pend- 
ing in a court of justice. 


LITRE. Fr. <A measure of capacity in 
the metric system, being a cubic decimetre, 
equal to 61.022 cubie inches, or 2.113 Amer- 
ican pints, or 1.76 English pints. Webster. 


LITTORAL. Belonging to the shore; as 
of seas and great lakes. Webster. Corre- 
sponding to riparian proprietors on a stream 
or sinall pond are littoral proprietors on a sea 
or lake. But “riparian” is also used co-ex- 
tensively with “littoral.” 7 Cush. 94. Sea 
17 How. 426. 


LITURA. Inthecivil law. An obliter- 
ation or blot in a will or other instrument. 
Dig. 28, 4, 1, 1. 


LITUS. Inold European law. 
of servant; one who surrendered himself in- 
to another’s power. Spelman. 

In the eivil law. The bank of a stream 
or shore of the sea; the coast. 


Litus est quousque maximus fluctus a 
mari pervenit. The shore is where the 
highest wave from thesea has reached. Dig, 
50, 16, 96. Ang. Tide-Waters, 67. 


LITUS MARIS. Thesea-shore. “It is 
certain that that which the sea overflows, 
either at high spring tides or at extraordina- 
ry tides, comes not, as to this purpose, under 
the denomination of ‘@itus maris,’ and con- 
sequently the king’s title is not of that large 
extent, but only to land that is usually over- 
flawed at ordinury tides. That, therefore, I 
call the ‘ shore’ that is between the common 


727 


LIVRE TOURNOIS 


high-water and low-water mark, and no 
more.” Hale de Jure Mar. c. 4. 


LIVELODE. Maintenance; support. 


LIVERY. 1. In English law. Delivery 
of possession of their lands to the king's ten- 
ants in capite or tenants by knight's service. 

2. A-writ which may be sued out bya ward 
in chivalry, on reaching his majority, to ob- 
tain delivery of the possession of his lands 
out of the hands of the guardian. 2 BL 
Com. 68. 

3. A particular dress or garb appropriate or 
peculiar to certain persons, a3 the members 
ofa suild, or, more particularly, the servants 
of a nobleman or gentleman. 

4. The privilege of a particular guild or 
company of persons, the members thereof 
being called “livery-men.” 

5. A contract of hiring of work-beasts, par- 
ticularly horses, to the use of the hirer. It 
is seldom used alone in this sense, but ap 
pears in the compound, “livery-stable.” 


LIVERY IN CHIVALRY. In feudal 
law. The delivery of the lands of a ward in 
chivalry out of the guardian’s hands, upoa 
the heir’s attaining the requisite age, _twen- 
ty-one for males, sixteen for females. 2 BI. 
Comm. 68. 


LIVERY-MAN. A member of some 
company in the city of London; also called a 
“freeman.” 


LIVERY OF SEISIN. The appropri- 
ate ceremony, at common law, for trans- 
ferring the corporal possession of lands or 
tenements by a grantor to his grantee. It 


| was livery @ deed where the purties went 
A kind | 


together upon the land, and there a twig, clod, 
key, or other symbol was delivered in the 
nameofthe whole. Livery im few was where 
the sume ceremony was performed, not upon 
the land itself, but in sight of it. 2 BL 
Comm. 315, 316. 


LIVERY-OFFICE. An office appointed 
for the delivery of lands. 


LIVERY STABLE KEEPER. One 
whose business it is to keep horses for hire 
or to let, or to keep. feed, or board horses for 
others. 


LIVRE TOURNOIS. In common law. 
A coin used in France before the Revolution. 
It is to be computed in the ad valorem duty 
on goods, etc., at eighteen and a half cents. 
Act March 2, 1798, § 61; 1Story, Laws, 629. 


LLOYD'S 


LLOYD'S. An association in the city of 
London, the members of which uniterwrite 
each other's policies. 


LLOYD’S BONDS. The name of aclass 
of evidences of debt, usedin England; being 
acknowledgments, by a borrowing company 
made under its seal, of « debt incurred and 
actually due by the company to a contractor 
or other person for work done, goods sup- 
plied, or otherwise, as the case may ve, with 
a covenant for payment of the principal and 
interest at a future time. Brown. 


LOADMANAGEHE. The pay to loadsmen; 
that is, persons who sail or row before ships, 
in barks or small vessels, with instruments 
for towing the ship and directing her course, 
in order that she may escape the dangers in 
her way. Poth. Des Avaries, no, 137. 


LOAN. A bailment without reward; 
consisting of the delivery of an article by the 
owner to another person, to be used by the 
latter gratuitously, and returned either in 
specie or in kiud. A sum of money confided 
to another. 

A loan of money is a contract by which 
one delivers a sum of money to another, and 
the latter ayrees to return at a future time a 
sum equivalent to that which he borrowed. 
Civil Code Cal. § 1912. 


LOAN CERTIFICATES. Certificates 
issued by a clearing-house to the associated 
banks to the amount of seventy-five per cent. 
of the value of the collaterals deposited by 
the borrowing banks with the loan committee 
of the clearing-house. Anderson. 


LOAN FOR CONSUMPTION, The 
loan for consumption is an agreement by 
which one person delivers to another a cer- 
tain quantity of things which are consumed 
by the use, under the obligation, by the bor- 
rower, to return to him as much of the same 
kind and quality. Civil Code La. art. 2910. 

Loans are of two kinds,—for consumption 
or for use. A loan for consumption is where 
the article is not to be returned ti specie, but 
in kind. This is asale, and nota vailment. 
Code Ga, 1882, § 2125. 


LOAN FOR EXCHANGE. A loan for 
exchange is a contract by which one delivers 
personal property te another, and the latter 
agrees to return to the lender a similar thing 
at a future time, without reward for its use. 
Civil Code Cal. § 1902. 


LOAW FOR USE. The loan for use is 
am agreement by which a person delivers a 


728 


LOBBYING 


thing to another, to use it according toi 
natural destination, or aceording to ft 
agreement, under the obligation on the p 
of the borrower to return it after he sh 
havedone using it. Civil Code La. art. 28 

A loan for use is a contract by which one 
gives to another the teinporary possession and 
use of personal property, und the latter agrees 
to return the same thing to him at a future 
time, without reward forits use. Civil Code 
Cal. § 1884. 

A loan for useis the gratuitous grant of an 
article to another for use, to be returned in 
specie, and may be either for a certain time 
or indefinitely, and at the will of the grantor. 
Code Ga. 1882, § 2126. 

Loan for use (called “commodatum” in the civil 
law) differs trom a loan for consumption, (called 
“mutwum” in the civil law,) in this: that the 
commodatum must be specificalfy returned; the 
mutitum is to be returned in kind, In the case of 
& commoedutum, the property in the thing remaing 


in the lender; in a mituumn, the property passes 
to the borrower. Bouvier, 


LOAN, GRATUITOUS, (or COMMO- 
DATE.) <Actass of bailment which is called 
“commodatum” in the Roman law, and is 
denominated by Sir William Jones a “loan 
for use,” (prét @ usage,) to distinguish it 
from “mutuum,” a loan for consumption. 
It is the gratuitous lending of an article to 
the borrower for his own use, Wharton. 


LOAN SOCIETIES. In English law, 
A kind of club formed for the purpose of ad- 
vancing money on Ioan to the industrial 
classes. 


LOBBYING. “Lobbying” is defined to 
be any personal solicitation of a member of 
a legislative body during a session thereof, 
by private interview, or letter or message, 
or other means and appliances not ad- 
dresseil solely to the judgment, to favor or 
oppose, or to vote for or against, any bill, 
resolution, report, or claim pending, or to 
be introduced by either branch thereof, by 
any person who misrepresents the nature 
of his interest in the matter to such mem- 
ber, or whois employed for a consideration 
by a person or corporation interested in the 
passage or defeat of such bill, resolution, re- 
port, or ciaim, fer the purpose of procuring 
the passage or defeat thereof. But this does 
not inelude such services as drafting peti- 
tions, bills, or resolutions, attending to the 
tuking of testiraony, collecting facts, prepar- 
ing arguments and memorials, and submit 
ting them orally or in writing to a committee. 
or member of the legislature, and other serv- 


L'OBLIGATION SANS CAUSE, ETC. 729 


fees of like character, intended to reach the 
reason of legislators. Code Ga. 1882, § 4486 


L’obligation sans cause, ou sur une 
fausse cause, ou sur cause illicite, ne 
peut avoir aucun effet. An obligation 
without consideration, or upon a false con- 
sideration, (which fails,) or upon unlawfal 
consideration, cannot have any effect. Code 
Uivil, 3, 8, 4; Chit. Cont. (11th Amer. Ed.) 
25, note. 


LOCAL. Relating to place; expressive 
of place; belonging or confined to a particu- 
lar place. Distinguished from “general,” 
“personal,” and “transitory.” 


LOCAL ACT OF PARLIAMENT. 
An act which has for its object the interest of 
sume particular locality, as the formation of 
a road, the alteration of tlhe course of a river, 
the formation of a public market in a par- 
ticular district, etc. Brown. 


LOCAL ACTION. An action is 50 
termed when all the principal facts on which 
it is founded are of a local nature; us where 
possession of land is to be recovered, or dam- 
ages for an actual trespass, or for waste af- 
fecting Jand, because in such case the cause 
of action relates to some particular locality, 
which usually also constitutes the venue of 
the action. 


LOCAL ALUEGIANCH. That meas- 
ure of obedience which is due from a subject 
of one government to another government, 
within whose territory he is temporarily resi- 
dent. 


LOGAL CHATTEL. A thing is local 
that is fixed to the freehold. Kitchin, 180. 


LOCAL COURTS. Courts whose juris- 
diction is limited to a particular territory or 
district. The expression often signifies the 
courts of the state, in opposition tothe United 
states courts, 


LOCAL CUSTOM. A particular or spe- 
cial custom; one not general in its nature or 
observance, but confined to a particular dis- 
trict or locality. 


LOCAL FREIGHT. Freight shipped 
from either terminus of a railroad to a way 
station, or vice versa, or from one way station 
to another; that is, over a part of the road 
only. 61 Ala. 579. 


LOCAL GOVERNMENT. The gov- | 
ernment or administration of a particular lo- | 
cality; especially, the governmental authority | 


of a mumcipat corporation, as a city or coun- 


LOCALITY 


ty, over its local and individual affairs, ex- 
ercised in virtue of power delegated to it for 
that purpose by the general government of 
the state or nation. 


LOCAL IMPROVEMENT. By common 
usage, especially as evidenced by the prac- 
tice of courts and text-writers, the term “lo- 
cal improvements” ig employed as signifying 
improvements made in a particular locality, 
by which the real property adjoining or near 
such locality is specially benefited. 22 Minn. 
507. 


LOCAL LAW. <A law which, instead of 
relating to and binding all persons, corpora- 
tions, or institutions to which it may be ap- 
plicable, within the whole territorial juris- 
diction of the law-making power, is limited 
in its operation to certain districts of such 
territory or to certain individual persons or 
corporations. See GENERAL Law. 


LOCAL OPTION. A privilege accorded 
by the legislature of a state to the several 
counties or other districts of the state to de- 
termine, each for itself, by popular vote, 
whether or not licenses should be issued for 
the sale of intoxicating liquors within such 
districts. 


LOCAL PREJUDICH, The “prejudice 
or local influence” which will warrant the 
removal of a cause from a state court to a 
federal court may be either prejudice and in- 
fluence existing against the party seeking 
such removal or existing in favor of his ad- 
versary. 31 Fed. Rep. 53. 


LOCAL STATUTE. Such a statute as 
has for its object the interest of some par- 
ticular lecality, as the formation of a road, 
the alteration of the course of a river, the 
formation of a public market in a particular 
district, etc. 


LOCAL TAXES. Those assessments 
which are limited to certain districts, as 
poor-rates, parochial taxes, county rates, mu- 
nicipal taxes, ete. 


LOCAL VENUE. Inpleading. A 
venue which must be laid in a particular 
county. When tle action could have arisen 
only in a particular county, it is local, and 
the venue must be laid in that county. 1 
Tidd, Pr. 427. 


LOCALITY. InScotehlaw. This name 
is given to a life-rent created in marriage 
contracts in favor of the wife, instead of 
leaving her to her legal life-rent of tierce. 
1 Gell, Comm. 55. 


LOCARE 


LOCARE. To let for hire; to deliver or 
Nail a thing for a certain reward or compen- 
gation. Bract. fol. 62. 


LOCARIUM. Inold European law. The 
price of letting; money paid for the hire of a 
thing; rent. Spelman. 


LOCATAIRE., In French’ law. 
see, tenant, or renter. 


LOCATARIUS. 


A les- 


A depositee. 


LOCATE. To ascertain and fx the posi- 
tion of sumething, the place of which was be- 
fore uncertain or not manifest; as to locate 
the calls in a deed. 

To decide upou the place or direction to be 
occupied by something not yet in boing; as 
to locate a road. 


LOCATIO. Lat. In the civil law. Let- 
ting for hire. The term is also used by text- 
writers upon the law of bailment at common 
law. In Scotch law it is translated “loca- 
tion.” Bell. 


LOCATIO-CONDUCTIO. In the civil 
law. A compound word used to denote the 
contract of bailment for hire, expressing the 
action of both parties, viz., a letting by the 
one, and a hiring by the other. 2 Kent, 
Comm. 586, note; Story, Bailm. § 368. 


LOCATIO CUSTODIZA. A letting to 
keep; a bailment or deposit of goods for hire. 
Story, Bailm. § 442. 


LOCATIO CPERIS. In the civil law. 
The contract of hiring work, 7. ¢., labor and 
services. 


It is a contract by which one of the parties 
gives a certain work to be performed by the 
other, who binds himself to do it fur the price 
agreed between thein, which he whe gives 
the work to be done promises to pay to the 
other ior doing it. Poth. Louage, no, 392, 


LOCATIO OPERIS FACIEWDI. A 
letting out of work to be done; a bailmenb 
ofa thing for the purpose of haying some 
work and labor or care and pains bestowed 
on it for a pecuniary recompense. 2 Kent, 
Comm. 586, 588; Story, Baiim. §§ 370, 42], 
422. 


LOCATIO OPERIS MERCIUM VE- 
HENDARUM. A letting of work to be 
done in the carrying of goods; a contract of 
bailment by which goods are delivered toa 
person to carry for hire. 2 Kent, Comm. 
597; Story, Bailm, §§ 370, 457. 


730 


LOCO PARENTIS 


LOCATIO RET. A letting of athingt 
hire. 2 Kent, Comm. 586. The bailmento 
letting of a thing to be used by the bailee fo 
acompensation to be paid by him. Story, 
Bailm. § 370. 


LOCATION, In American land law. 
The designation of the boundaries of a par- 
ticular piece of land, either upon record oron 
the land itself. 1 Bibb, 84. 

The finding and marking out the bounds of 
a particular tract of land, upon the land itself, 
in conformity to a certain description con- 
tained in an entry, grant, map, ete.; such 
description consisting in what are termed 
“locative calls.” 

In mining law. The act of appropri- 
ating a “mining claim” (parcel of land con- 
taining precious metal in its soil or rock) ac- 
cording to certain established rules. It usu- 
ally consists in placing on the ground, ina 
conspicuous position, a notice setting forth 
the name of the locator, the fact that it is 
thus taken or located, with the requisite 
description of the extent and boundaries of 
the parcel, 104 U.S. 649. 

In a secondary sense, the mining claim 
covered by a single act of appropriation or 
location. Id. 

In Scotch law. A contract by which the 
temporary use of a subject, or the work or 
service of a person, is given for an ascertained 
hire. 1 Bell, Comm. 255. 


LOCATIVE CALLS. In a deed, patent, 
or other instrument containing a description 
of land, locative calls are specific calls, de- 
scriptions, or marks of location, referring to 
landmarks, physical objects, or other points 
by which the land can be exactly located and 
identified. 


LOCATOR. In the civil and Scotch ° 
law. <A letter; one who lets; he who, being 
the owner of a thing, lets it out to another 
for hire or compensation. 

In American land law. One who lo- 
cates Iand, or intends or is entitled to lucate. 
See LOcATIon. 


LOCK-UP HOUSE. A place used tem- 
porarily as a prison. 


LOCKMAW. An officer in the Isle of 
Man, to execute the orders of the governor, 
much like our under-sheriif. Wharton. 


LOCMAN. Fr. 


A pilot. 


LOCO PARENTIS. See Is Loco Pa- 
RENTIS. 


In French marine law. 


| 
| 


LOCOCESSION 


LOCOCESSION. The act of giving 
place. 


LOCULUS, In old records. 
purse. 


LOCUM TENENS. Lat. Holding the 
place, A deputy, substitute, lieutenant, or 
representative. 


LOCUPLES. Lat. in the civil law. 
Able to respond in an action; good for the 
amount which the plaintiff might recover. 
Dig. 50, 16, 234, 1. 


LOCUS. Lat. 
& thing is done. 


LOCUS CONTRACTUS. The place of 
a contract; the place where a contract is 
made. 


LOCUS CRIMINIS. The locality of a 
erime; the place where a crime was commit- 
ted, 


LOCUS DELICTI. The place of the of- 
fense; the place where an offense wus com- 
mitted. 2 Kent, Comm. 109. 


LOCUS IN QUO. The place in which. 
The place in which the cause of action arose, 
er where anything is alleged, in pleadings, 
to have been done. The phrase is most fre- 
quently used in actions ef trespass quare 
elausum fregit. 


LOCUS PARTITUS. In old English 
law. <A place divided. A division made be- 
tween two towns or counties to make out in 
which the land or place in question lies. 
Fleta, lib, 4, c. 15, § 1; Cowell. 


LOCUS PENITENTIA. A place for 
repentance; an opportunity for changing 
one’s mind; a chance to withdraw from a 
contemplated bargain or contract before it 
sesults in a definite contractual liability. 
Also used ofa chance afforded to a person, by 
the circumstances, of relinquishing the in- 
tention which he has formed to commit a 
crime, before the perpetration thereof. 


A colin; a 


A place; the place where 


Locus pro solutione veditus aut pecu- 
nis secundum conditionem dimissionis 
aut obligationis est stricte observandus, 
4 Coke, 73. The place for the payment of 
rept or money, according to the condition of 
a lease or bend, is to be strictly observed. 


LOCUS PUBLICUS. In the civil law. 
A public piace. Dig. 43, 8, 1; Id. 43, 8, 
2, 3. 


731 


LOCUS REGIT ACTUM,. In private | 


‘nternational law. 


LODS ET VENTES 


legal transaction complies with the formallt- 
ties required by the law of the country where 
it is done, it is also valid in the country where 
it is to be given effect, although by the law 
of that country other formalities are re- 
quired. 8 Sav. Syst. § 381: Westl. Priv. 
Int. Law, 159. 


LOCUS REI SIT, The places where 
a thing is situated. In proveedinus in vem, 
or the real actions of the civil law, the proper 
forum is the locus rei stte. 2 Gall. 191, 197. 


LOCUS SIGILLI. The place of the seal; 
the piace oceupied by the seal of written 
instruments, Usually abbreviated to “L,S.” 


LOCUS STANDI, A place of standing; 
standing incourt. Aright of appearance in 
acourt of justice, or before a legislative body, 
on a given question. 


LODE. This term, as used in the legis- 
lation of congress, is applicable to any zone 
or belt of mineralized rock lying within 
boundaries clearly separating it from the 
neighboring rock. It includes all deposits 
of mineral matter found through a mjneral- 
ized zone or belt coming irom the same source, 
impressed with the same forms, and appear- 
ing toa have been created by the same pro- 
cesses. 4 Sawy. 312. 


LODEMAN, or LOADSMAN, The 
pilot conducts the ship up the river or into 
port; but the loadsman is he that undertakes 
to bring a ship through the haven, after be- 
ing brought thither by the pilot, to the quay 
or place of diseharge, Jacob. 


LODEMAWNAGE. The hire of a pilot 
for condueting a yessel from one place to an- 
other. Cowell. 


LODGER. One who occupies hired 
apartments in another's house; a tenant of 
part of another’s house. 

A tenant, with the right of exclusive pos- 
session of a part of a house, the landlord, by 
himself or an agent, retaining general domin- 
ion over the house itself. 


LODGINGS. MHabitation in another’s 
house; apartments in another's house, fur- 
nished or unfurnished, occupied for habita- 
tion; the oecupier being termed a “lodger.” 


LODS ET VENTSES. In old French 
and Canadian law. <A fine payable by a 
roturier on every change of ownership of his 
land; a mutation or alienation fing. Steph. 


The rule that, when a/| Lect. 351. 


LOG-BOOK 


LOG-BOOK. Aship’s journal. It con- 
tains a minute account of the ship’s course, 
with ashort history of every occurrence dur- 
ing the voyage. 1 Marsh. Ins. 312. 

The part of the log-book relating to trans- 
actions in the harbor is termed the “harbor 
log;” that relating to what happens at sea, 
the “sea log.”” Young, Naut. Dict. 


LOG-ROLLING. <A mischievous legis- 
lative practice, of embracing in one bill sev- 
eral distinct matters, none of which, per- 
haps, could singly obtain the assent of the 
legislature, and then procuring ils passage 
by a combination of the minorities in favor 
of each of the measures inte a majority that 
will adopt them all. 60 Ala. 369. 


LOGATING. An unlawful game men- 
tioned in St. 33 Hen. VIII. ec, 9. 


LOGIA. <A small house, lodge, or cot- 
tage. Mon. Angl. tom. 1, p. 400. 


LOGIC, The science of reasoning, or of 
the operations of the understanding which 
are subservient to the estimation of evidence, 
‘The term includes both the process itself of 
proceeding from known truths to unknown, 
and all other intellectual operations, in so far 
as auxiliary to this. 


LOGIUM. In old records. 
hovel, or outhouse. 


LOGOGRAPHUS. In Roman law. A 
public clerk, register, or bouk-keeper; one 
who wrote or kept books of accounts. Dig. 
50, 4, 18, 10; Cod. 10, 69. 


A lodge, 


LOGS. Stems or trunks of trees cut into 
convenient lengths for the purpose of being 
afterwards manufactured into lumber of va- 
rious kinds; not including manufactured 
lumber of any sort, nor timber which is 
squared or otherwise shaped for use without 
further change in form. 62 Wis, 398, 9 N. 
W. Rep. 67. 


LOLLARDS. A body of primitive Wes- 
leyans, who assumed importance about the 
time of John Wycliffe, (1360,) and were very 
successful in disseminating evangelical truth; 
but, being implicated (apparently against 
their will) in the insurrection of the villeins 
in 1581, the statute De Heretico Combmuren- 
do (2 Hen. LV. ¢. 15) was passed against 
thei, for their sappression. However, they 
were not suppressed, and their representa- 
tives survive to the present day under vari- 
ous names and disguises. Brown. 


782 


LOPWOOD 


LOMBARDS. A name givento the mer- 
chants of Italy, numbers of whom, during 
the twelfth and thirteenth centuries, were 
established as merchants and bankers in the 
principal cities of Hurope. 


LONDRES. L. Fr. 
P, 1 Edw. Il. p. 4. 


LONG PARLIAMENT. The name 
usually given to the parliament which metin 
November, 1640, under Charles 1., and was 
dissolved by Cromwell on the 10th of April, 
1653. The name “Long Parliament” is, how- 
ever, also given to the parliament which met 
in 1661, after the restoration of the mon- 
archy, and was dissolved on the 30th of 
December, 1678. This latter parliament is 
sometimes called, by way of distinction, the 
“long parliament of Charles II.” Mozley & 
Whitley. 


LONG QUINTO, THE. An expression 
used to denote part second of the year-book 
which gives reports of cases in 5 Edw. IV, 


LONG VACATION. The recess of the 
English courts from August 10th to October 
24th, 


Longa possessio est pacis jus, 
possession is the law of peace. 
Princ.; Co. Litt: 6. 


Longa possessio jus parit. Long pos- 
session begets right. Fleta, lib. 3, ¢. 15, 


§ 6. 


Longa possessio parit jus possidendi, 
et tollit actionem vero domino. Long 
possession produces the right of possession, 
and takes away from the true owner his ae- 
tion, Co. Litt. 110b. 


Longum tempus et longus usus qui 
excedit memoria hominum suflicit pro 
jure. Co. Litt. 115a. Long time and long 
use, exceeding the memory of men, suffices 
for right. 


LOOKOUT. A proper lockout on a yves- 
sel is some one in a favorable position to see, 
stationed near enough to the helmsinun to 
communicate with him, and to receive commu- 
nications from him, and exclusively employed 
in watching the movements of vessels which 
they are meeting or about to pass. 12 How. 
462. 


LOPWOOD. A right in the inhabitants 
of a parish within a manor, in England, to 
lop for fuel, at certain perioils of the year, 
the branches of trees growing upon the waste 
lands of the manor. Sweet. 


London. Yearb. 


Long 
Braneh, 


LOQUELA 


JELA. Lat. Acolloquy; talk. In 
nglish law, this term denoted the oral 
tions of the parties toa suit, which led 
lig issue now called the “pleadings.” It 
designated an “imparlance,” (q. v.,) both 
names evidently referring to the talking to- 
gether of the parties. Logueia sine die, a 
_ posiponement to an indefinite time. 


Loquendum ut vulgus; sentiendum ut 
docti. We must speak as the common peo- 
ple; we must think as the learned. 7 Coke, 
1lb. This maxim expresses the rule that, 
when words are used in a technical sense, 
they must be understood technically; other- 
wise, when they may be supposed to be used 
in their ordinary acceptation. 


LORD. In English law. A title of 
honor or nobility belonging properly to the 
degree of baron, but applied also to the whole 
peerage. as in the expression “the house of 
lords.” 1 Bi. Comm. 396-400. 

A title of ofice, as lord mayor, lord com- 
missioner, ete. 

Tn feudal taw. A feudal superior or pro- 
prictor; ons of whom a fee or estate is held. 


LORD ADVOCATE. The chief public 
| prosecutor of Scotland. 2 Alis. Crim. Pr. 84. 


LORD AND VASSAL. In the feudal 


system, the grantor, whoretained the domin- | 


fon or ultimate property, was called the 

“Tord,” and the grantee, who had only the 

use or possession, was called the “vassal” or 
| “feudatory.” 


LORD CHIEF BARON. 
judge of the English court of exchequer, 
prior to the judicature acta. 


LORD CHIEF JUSTICE. 
TICE. 


LORD HIGH CHANCELLOR. See 
CHANCELLOR, THE Lorp Hicu. 


LORD HIGH STEWARD. In Eng- 
land, when a person is impeached, or when a 
peer is tried on indictment for treason or 
felony before the house of lords, one of the 
lords is appointed lord high steward, and acts 
as speaker pro tempore. Sweet. 


See Jus- 


LORD HIGH TREASURER. An offi- 
cer formerly existing in England, who had 
the charge of the royal revenues and customs 
duties, and of Jeasing the crown lands. His 
functions are now vested in the lords com- 
missioners of the treasury. Mozley & Whit- 
ley. 


8. J. Nick 


The chief | 


UNWEY 


738 


LORD PRIVY SEAL 


LORD IN GROSS. In feudal law. He 
who is lord, not by reason of any manor, but 
as the king in respect of his crown, etc. 
“Very lord” is he whois immediate lord to 
his tenant; and “very tenant,” he who holds 
iinmediately of that lord. So that, where 

| there is lord paramount, lord mesne, and ten- 
ant, the lord parainount is not very lord to 
the tenant. Wharton. 


LORD JUSTICE CLERK. 
judicial officer in Scotland. 


The second 


LORD KEEPER, or Keeper of the great 
Seal, was originally another name for the jord 
chancellor. After Henry II.’s reign they 
were sometimes divided, but now there can- 
not be a lord chancellor and lord kevper at 
the same time, for by St. 5 Eliz. c. 18, they 


are declared to be the same office. Com. Dig. 
“Chancery,” B. 1. 
LORD LIEUTENANT. In English 


law. ‘The viceroy of the crown in Ireland. 

The principal military officer of a county, 
originally appointed for the purpose of mus- 
tering the inhabitants for the defense of the 
, country. 


LORD MAYOR. Thechief officer of the 
corporation of the city of London is so called. 
The origin of the appellation of “lord,” whieh 
the mayor of London enjoys, is attributed to 
the fourth charter of Edward III., which 
conferred on that officer the honor of having 
maces, the same as royal, carried before him 
by the serjeants. Pull. Laws & Cust. Lond. 


LORD MAYOR’S COURT. In En- 
glish law. This is a court of record, of law 
and equity, and is the chief court of justice 
within the corporation of London. Theo- 
retically the lord mayor and aldermen are 
supposed to preside, but the recorder is in 
fact the acting judge. It has jurisdiction of 
all personal and mixed actions arising with- 
in the city and liberties without regard to 
the amount in controversy. See 3 Steph. 
, Comm. 449, note 2. 


LORD OF A MANOR. The grantes 
or owner of a manor. 


LORD ORDINARY is the judge of the 
court of scssion in Seotland, who ofliciates 
for the time being as the judge of first in- 
stance. Darl. Pr. Ct. Sess. 


LORD PRIVY SEAL, before the 30 
Hen. VUL., was generally an ecclesiastic. 
The office has since been usually conferred on 
temporal peers above the degree of barons. 
He is appointed by letters patent. The lord 


LORD WARDEN, ETC. 


privy seal, receiving a warrant from the sig- 
net office, issues the privy seal, which is an 
authority to the lord chancellor to pass the 
great seal where the nature of the grant re- 
guires it. But the privy seals for money be- 
gin in the treasury, whence the first warrant 
issues, countersigned by the lord treasurer. 
The lord privy seal is a raember of the cabi- 
net council. Ene. Loud. 


LORD WARDEN OF 
PORTS. See Cinque Ports, 


LORDS APPELLANTS. Five peers 
who for a time superseded Richard II. in bis 
government, and whom, after a brief control 
of the government, he in turn superseded in 
1897, und put the survivors of them to death. 
Richard II.’s cighteen commissioners (twelve 
peers and six commoners) took their place, 
as an embryo privy council acting with full 
powers, during the parliamentary recess, 
Brown. 


LORDS COMMISSIONERS. In En- 
glish Jaw. When a high public office in the 
state, formerly executed by an individual, is 
put into commission, the persons charged 
with the commission are called “lords com- 
missioners,” or sometimes “lords” or “com- 
missioners” simply. Thus, we have, in lieu 
of the lord treasurer and lord high admiral 
of former times, the lords commissioners of 
the treasury, and the lords commissioners of 
the admiralty; and, whenever the groat seal 
is put into commission, the persons charged 
wilh it are called “commissioners” or “lords 
commissioners” of the great seal. Mozley & 
Whitley. 


LORD’S DAY. <A name sometimes giv- 
en toSunday. Co. Lilt. 155. 


LORDS JUSTICHS OF APPEAL, In 
English law. The title of the ordinary 
judges of the court of appeal, by Jud. Act 
1877, § 4. Prior to the judicature acts, there 
were bwo “lords justices of appeal in chan- 
eery,” to whom an appeal lay from a vice- 
shaneellor, by 14 & 15 Vict. ¢. 83. 


LORDS MARCHERS. Those nobie- 
men who lived on the marches of Wales or 
Scotland, who in times past had their laws 
and power of life and death, like petty kings. 
Abolished by 27 Hen. VIIL. c. 26, and 6 
Edw. Vi.e. 10. Wharton. 


CINQUE 


LORDS OF APPEAL. Those members 
of the house of lords of whom at least three 
must be present for the hearing and determi- 
nation of appeals. They are the lord chan- 


784 


| of £6,000 a year, to aid the house of lords in 


LOSS 


cellor, the lords of appeal in ordinary, and 
such peers of parliament as hold, or have 
held, high judicial offices, such as ex-chan- 
cellors and judges of the superior courts in 
Great Britain and Ireland. App. Jur, Act 
1876, §8 5, 25. 


LORDS OF APPEAL IN ORDI. 
WARY. These are appointed, with a salary 


the hearing of appeals, They rank as barons 
for life, but sit and vetein the house of lorda 
during the tenure of their office only. App. 
Jar. Act 1876, § 6. 


LORDS OF ERECTION, On the Ret- 
ormation in Scotland, the king, as proprieton 
of benefices formerly held by abbots and 
priors, gave them out in temporai lordships 
to favorites, who were termed “lords of 
erection.” Wharton. 


LORDS OF PARLIAMENT. Those 
who have seats in the house of lords. Dur- 
ing bankruptcy, peers are disqualified from 
sitting or voting in the house of lords. 34 & 
35 Vict. ¢. 50. 


LORDS OF REGALITY. In Seotch 
law. Persons to whom rights of civil and 
eriminal jurisdiction were given by the 
crown, 


LORDS ORDAINERS. Lords appoint 
ed in 1312, in the reign of Edward II., for the 
control of the sovereign and the court party, 
and for the general reform and better govern- 
ment oi the country, Brown, 


LORDS SPIRITUAL. Thearchbishops 
and bishops who have seats in the house of 
lords. 


LORDS TEMPORAL. Those lay peers 
who huve seata in the house of lords. 


LORDSHIP. In English law. Domin- 
ion, manor, seigniory, domain; also a title of 
honor used to a nobleman not being a duke. 
It is also the customary titulary appellation 
of the judges and some other persons in au- 
thority and oilice. 


LOss. In insurance. The injury or 
damage sustained by the insured in conge- 
quence of the happening of one or more of the 
accidents or misfortunes against which the 
insurer, in consideration of the premium, has 
undertaken to indemnify the insured. 1 
Bouv. Inst. no. 1215, 


A loss ts total when the subject insured is wholly 
destroyed or reduced to an entirely worthless con- 
dition. Jt is partiad when the subject is injured, 
but not destroyed, or when it still retains some 


LOsT OR NOT LOST 


yalue, or some part of it escapes. It is actual 
when the destruction of the thing is real and sub- 
atantial. It it venstructive when the injury, with- 
ont entire destruction, is such a3 to entitle the as- 
sured to abandon the property to the underwriter 
aud claim as foran actual loss. See ActoaL Totan 
Loss. 


LOST OR NOT LOST. A phrase some- 
times inserted in policies of marine insurance 
to signify that tle contract is meant to relate 
back to the beginning of a voyage now in 
progress, or to some other antecedent time, 
and to be valid and effectual even if, at the 
moment of executing the policy, the vessel | 
should have already perished by some of the 
perils insured against, provided that neither 
party has knowledge of that fact or any ad- 
vantage over the other in the way of supe- | 
rior moans of information. 


LOST PAPERS. Papers which have 
been so mislid that they cannot be found 
after diligent search. 


LOT. The arbitrament of chance; haz- 
ard. That which fortuitously determines 
What course shall be taken or what disposition 
be made of property or rights. 

A share; one of several parcels into which 
property is divided. Used particularly of | 
land. 

The thirteenth dish of lead in the mines of 
Derbyshire, which belonged to the crown. 


LOT AND SCOT. In English law. 
Certain duties which must be piid by those 
who claim to exercise the elective franchise 
within eertain cities and borouglis, before 
they are entitled to vote, It is said that the 
practice became uniform to refer to the poor- 
rate ag a register of “scot and lot” voters; so 
that the term, when empivyed to deline a 
tight of election, meant only the payment by 
4 parishioner of the sum to which he was as- 
sessed on the poor-rate. Brown. 


LOT OF LAND. A small tract or par- 
eel of land in a village, town, or city, suita- 
ble for building, or for a garden, or other 
similur uses. See 28 N. J. Law, 44; 37 N. 
J. Eq. 486; 28 Minn. 17, 8 N. W. Rep. 830. 


LOTHERWITE, or LEYERWIT. In 
old English law. A liberty or privilege to 
take amends for lying with a bondwoman 
without license. 


LOTTERY. A lottery is any scheme for 
the disposal or distribution of property by | 
chance aniong persons who have paid, or 
promised or agreed to pay, any valuable con- 
sideration for the chance of obtaining such , 


735 


LOYAL 


property, or a portion of it, or for any share 
of or interest in such property, upon any 
agreement, understanding, or expectation that 
it is to be distributed or disposed of by lot or 
chance, whether called a “lottery,” a “raffle,” 
or a “gift enterprise,” or by whatever name 
the same may be known. Pen. Code Cal. 
§ 319; Pen. Code Dak. § 373. 


A lottery is a distribution of prizea by chance or 
lot, where a valuable consideration is given for 
the chance of drawinga prize. 1 Abb. (U. 5.) 274: 
42 Tex. 580; § Phila 497. 


Lou te¢ ley done chose, la ceo done 
remedie a vener a ceo. 2 Rolle, 17. 
Where the law gives a right, it gives a rem- 
edy to recover. 


LOUAGH. Fr. This is the contract of 
hiring and letting in French law, and may be 
either of things or of labor, The varieties 
of each are the following: 

1. Letting of things,-Bail & loyer being 
the letting of houses; dad a ferme being the 
letting of lands. 

2. Letting of labor,-loyer being the let- 
ting of personal service; badd & cheptel being 
the letting of animals. Brown. 


LOURCURDUS. 
Cowell. 


A ram or boll-wether. 


LOVE-DAY. Inold English law. The 
day on which any dispute was amicably set- 
tled between neighbors; or a day on which 
one neighbor helps ancther without hire. 
Wharton. 


LOW JUSTICE. In old European law. 
Jurisdiction of petty offenses, as distinguished 
from “high justice,” (q, %.) 


LOW WATER. 
point of ebb-tide. 


The furthest receding 
13 How, 417. 


LOW-WATER MARK. That Nne on 
the shore of the sea which marks the edge 
of the waters at the lowest point of the ore 
dinary ebb tide. See 60 Pa. St. 339; 26 Me. 
add. 


LOWBOTEH. A recompense for the death 
of a man killed inatumult. Cowell. 


LOWERS. Fr. In French maritime 
law, Wages. Ord. Mar. liv. 1, tit. 14, art, 
16. 


LOYAL. Legal; authorized by or con- 
forming to law. Also faithfulin one’s polit- 
ical relations; giving faithful support to one’s 
prince or sovereign orto the existing govern- 
ment, 


LOYALTY 


LOYALTY. Adherence to law. Faith- 
fulness to one’s prince or sovereign or to the 
existing government, 


Lubricum linguzs non facile trahen- 
dum est in ponam. Cro. Car. 117. A 
alip of the tongue ought not lightly to be sub- 
jected to punishment. * 


LUCID INTERVALS. In medical ju- 
risprudence. Intervals occurring in the 
mental life of an insane person during which 
he is completely restored to the use of his 
reason, or so far restored that he has sufii- 
elent intelligence, judgment, and will te enter 
into contractual relations, or perform other 
legal acts, without disqualification by reason 
of hi. disaase. 


LUCRATIVA CAUSA. Lat. In Roman 
law. A consideration which is voluntary; 
that is to say, a gratuitous gift, or such like. 
It wag opposed to omerosa causa, which de- 
noted a valuable consideration. It was aprin- 
ciple of the Roman law that two lucrative 
causes could not concur in the same person as 
regarded the same thing; that is tosay, that, 
when the same thing was bequeathed to a 
person by two different testators, he could 
not have the thing (or its value} twice over. 
Brown. 


LUCRATIVA USUCAPIO. Lat. This 
species of usucapio was permitted in Roman 
law only in the ease of persons taking pos- 
session of property upon the deceuse of its 
late owner, and in exclusion or deforcement 
of the heir, whence it was called “usucapio 
pro herede.” The adjective “lucrativa” de- 
noted that property was acquired by this 
usucapio without any consideration or pay- 
ment for it by way of purchase; and, as the 
possessor who so acquired the property was a 
mala fide possessor, bis acquisition, or use- 
capio, Was Called aiso “impreba,” (z. ¢@., dis- 
honest;)} but this dishonesty was tolerated (un- 
til abolished by Iiadrian} as an incentive to 
force the Aceres to take possession, in order 
that the debts might be paid and the sacrifices 
performed; and, as a further incentive to the 
heres, this usucapie was compleie in one 
year. Brown. 


LUCRATIVE SUCCESSION. In 
Scotch law. A kind of passivetitle by which 
a person accepting from another, without any 
onerous cause, (or without paying value,) a 
disposition of any part of his heritage, to 
which the receiver would have succeeded as 
heir, is liable to all the grantor’s debts con- 
tracted before the said disposibion. 1 Forb. 
Tnst. pt. 3, p. 102. 


736 


‘defect in the comparing faculty. 


LUNACY 


LUCRATUS. InScotehlaw. A gainer, 


LUCRE. Gain in money or goods; prolit; 
usually in an ill sense, or with the sense of 
something base or unworthy. Webster. 


LUCRI CAUSA. Jat. In criminal law. 
A term descriptive of the intent with which 
property is taken in cases of larceny, tha 
phrase meaning “for the sake of lucre” or 
gain. 


LUCRUM CHSSANS. Eat. In Scoteh 
law. <A ceasing gain, as distinguished from 
damnum datum, an actual loss. 


Luecrum facere ex pupilli tutela tutor 
non debet. A guardian ought nut to make 
money out of the guardianship of his ward, 
1 Johns. Ch. 527, 535. 


LUCTUOSA HAREDITAS, A mourn- 
fulinheritance. See Hareviras Lucrvosa. 


LUCTUS. In Roman law. 
See Annus Lvorve. 


LUGGAGE, Luggage may consist of 
any articles intended for the use of a passen- 
ger while traveling, or for his personal equip 
ment, Civil Code Cal. § 2181, 

This term is synonymous with “baggage,” 
but is more commonly used in England than 
in America. i 


LUMEN. In the civil law. Light; the 
light of the sun or sky; the privilege of re- 
ceiving light into a house, 

A light or window. 


LUMINA. In the civil law. Lights; 
windows; openings to obtain light for one's 
building. 


LUMINARE. A lamp or candle set burn- 
ing on the altar of any cliurch or chapel, for 
the maintenance whereof lands and rent- 
charges were frequently given to parish 
churches, etc. Kennett, Gloss, 


Mourning. 


LUNACY. Lunacy is that condition or 
habit in which the mind is directed by the 
will, but is wholly or partially misguided or 
erroneously governed by it; or it is the im- 
pairment of any one or more of the faculties 
of the mind, accompanied with or inducing a 
1 Bland, 


o8b. 

“Lunacy” means either (1) the condition or 
status of a lunatic, (q. v.,) or (2) Judicial proceed- 
ings taken before the proper court or officer for the 
purpose of making inquiry into the ataie of mind 
of persons alleged to be lunatics, of taking charge 
of them and their property if they are found to ba 
iunatics, and for removing the restraint on their 
restoration to sanity. Sweek 


LUNACY 


acy includes both the forms of mental alicna- 
own, respectively, as “mania” and “demen- 
10 N. J. Eq. 186. 


LUNACY, COMMISSION OF. A 
commission issuing from a court of compe- 
tent jurisdiction, authorizing an inquiry to be 
tiade into the mental condition of a person 
wio is alleged to be a lunatic. 


LUNAR. Belonging to or measured by 
the revolutions of the moon. 


LUNAR MONTH. See Monta. 


LUNATIC. A person of deranged or un- 
gound mind; a person whose mental faculties 
arein the condition called “lunacy,” (g. 0.) 


Lunaticus, qui gaudet in lueidis in- 


| tervallis. He is a lunatic who enjoys lucid 
| intervals. 1 Story, Cont. § 73. 
LUNDRESS. In old English law. A 


silver penny, 80 called because it was to be 
| goined only at London, (@ Londres,) and not 
at the country mints. Lown. Essay Coins, 
17; Cowell. 


LUPANATRIX. A bawd or strumpet. 
8 Inst. 206. 


LUPINUM CAPUT GERERE. Lat. 
To be outlawed, and lave one’s head exposed, 
like a wolf's, with a reward to him who should 
take it. Cowell. 


LURGULARY. Casting any corrupt or 
poisonous thing into the water. Wharton. 


LUSHBOROW. Inold Englishlaw. A 
base sort of money, coined beyond sea in the 
likeness of English coin, and introduced into 
England in the reign of xlward III. Pro- 
hibited by St. 25 Edw. U1. ce. 4. Spelman; 
Cowell. 


LUXURY. Excess and extravagance, 
which was formerly an offense against the 
public economy, but is not now punishable. 
Wharton. 


LYCH-GATE. The gate into a church- 
yard, with a roof or awning hung on posis 
over it to cover the body brought for burial, 
when it rests underneath. Wharton. 


LYEF-GELD. Sax. In old records. 
Lief silver or money; asmall fine paid by the 
customary tenant to the lord for leave to 
plow or sow, ete. Somn. Gavelkind, 27. 


LYING BY. A person who, by his pres- 
ence and silence at a transaction which affects 
AM.DICT.LAW—47 


737 


LYTA 


his interests, may be fairly supposed to ac- 
quiesce in it, if he afterwards propose to dis- 
turb the arrangement, is said to be prevented 
from doing so by reason that he has been 
lying by. 


LYING IN FRANCHISE. A term 
descriptive of waifs, wrecks, estrays, and the 
like, which may be seized without suit or ac- 
tion. 


LYING IN GRANT. A phrase applied 
to incorporeal rights, incapable of manual 
tradition, and which must pass by mere de- 
livery of a deed. 


LYING IN WAIT. Lying in ambush; 
lying hid or concealed for the purpose of mak- 
ing a sudden and unexpected attack upon a 
person when he shall arrive at thescenu. In 
some jurisdictions, where there are several 
degrees of murder, lying in wait is made evi- 
dence of that deliberation and premeditated 
intent which is necessary to characterize mur- 
der in the first degree. 

This term is not synonymous with “con- 
cealed.” If a person conceals himself for the 
purpose of shooting another unawares, he is 
lying in wait; but a person may, while con- 
cealed, shoot another without committing the 
crime of murder. 55 Cal. 207. 


LYNCH LAW. A term descriptive of 
the action of unofficial persons, organized 
bands, or mobs, who seize persons charged 
with or suspected of crimes, or take them out 
of the custody of the law, and inflict summary 
punishment upon them, without Jegal trial, 
and without the warrant or authority of law 


LYNDHURST’S (LORD) ACT. This 
statute (5 & 6 Wm. IV, c. 54) renders mar- 
riages within the prohibited degrees abso- 
lutely null and void. ‘heretofore such mar- 
riages were voidable merely. 


LYON KING OF ARMS. In Scotch 
law. The ancient duty of this officer was to 
carry public messages to foreign states, and 
it is still the practice of the heralds to make 
all royal proclamations at the Cross of Edin- 
burgh. ‘The oflicers serving under him are 
heralds, pursuivants, and messengers. Bell. 


LYTM. In old Roman law. A name 
given to students of the civillaw in the fourth 
year of their course, from their being sup- 
posed capable of solving any difficulty inlaw. 
Tayl. Civil Law, 39. 


M. 


M. This letter, used asa Roman numeral, 
stands for one thousand, 

It was also, in old English law, a brand or 
stigma impressed upon the brawn of the 
thumb of a person convicted of manslaughter 
and admitted to the benefit of clergy. 

This letter was sometimes put on the 
face of treasury notes of the United States, 
and signifies that the treasury note bears in- 
terest at the rate of one mill per centum, and 
not one per centum interest. 13 Pet. 176. 

M. also stands as an abbreviation for sev- 
eral words of which it is the initial letter; as 
“Mary,” (the English queen of that name,) 
“Michaelmas,” “master,” “middle.” 


M. D. Anabbreviation for “Middle Dis- 
trict,” in reference to the division of the 
United States into judicial districts. Alsoan 
abbreviation for ‘ Doctor of Medicine.” 


M. R. An abbreviation for “Master of 
the Rolls.” 


M. T. An abbreviation for “Michaelmas 
Term.” 


MACH, A large staff, made of the pre- 
cious metals, and highly ornamented. It is 
used as an emblem of authority, and carried 
before certain public functionaries by a mace- 
bearer. 


MACE-BHARER. In English law. 
One who carries the mace before certain 
functionaries. In Scotland, an officer at- 
tending the court of session, and usually 
called a “macer.” 


MACE-GREFF. In old English law. 
Qne who buys stolen goods, particularly 
food, knowing it to have been stolen. 


MACE-PROOF. Secure against arrest. 


MACEDONIAN DECREE. In Roman 
law. This was the Senatus-consultum Mace- 
donianum, a decree of the Roman senate, 
first siven under Claudius, and renewed un- 
der Vespasian, by which it was declared that 
no action should be maintained to recover a 
loan of money made toa child who was un- 
der the patria potestas. It was intended to 
strike at the practice of usurers in making 
loans, on unconscionable terms, to family 
heirs who would morlyags their future ex- 
pectations from the paternal estate. The law 
is said to have derivew ‘to came from that of 


738 


a 


MAGBOTE 


anotorioususurer. See Mackeld. Rom. Law 
§ 482; Inst. 4, 7, 1; Dig. 14, 6. 


MACER. A mace-bearer; an officer a 
tending the court of session in Scotland. 


MACHECOLLARE. Tomakea warlik 
device over a gate or other passage like toa 
grate, through which scalding water or pon- 
derous or offensive things may be cast upon 
the assailants. Co. Litt. 5a. 


MACHINATION. Contriving a plot or 
conspiracy. The act of planning or contriv- 
ing a scheme for executing some purpose, 
particularly an evil purpose; an artful design 
formed with deliberation. 


MACHINE. In patent law. Any con- 
trivance used to regulate or augment force 
or motion; more properly, a complex struct 
ure, consisting of a combination, or peculiar 
modification, of the mechanical powers. 


The term “machine,” in patent law, includes 
every mechanical device, or combination of me 
chanical powers and devices, to perform some fune- 
tion and produce a certain effect or result. But 
where the result or effect is produced by chemical 
action, by the operation or application of some ele- 
ment or power of nature, or of one substance to 
another, such modes, methods, or operations are 
called “processes.” A new process is usually the 
result of discovery; a machine, of invention. 15. 
How. 252, 267. 


MACHINERY. <A more comprehensive 
term than “machine;” including the appur- 
tenances necessary to the working of a ma. 
chine. 111 Mass. 540; 108 Mass. 78. 


MACHOLUM, A barn or granary open 
at the top; a rick or stack of corn. Spel- 
man. 

MACTATOR. 


MACULARE. Inold Europeanlaw. To 
wound. Spelman. 


MADE EKNOWN. Where a writ of 
seive facitas has been actually served upona 
defendant, the proper return is that its con. 
tents have been “made known” to him. 


MADRAS REGULATIONS. Certain 
regulations prescribed for the government of 
the Madras presidency. Mozley & Whitley. 


MAiC-BURGH. Kindred; family. 


MA:GBOTE. In Saxon law. A recom- | 
pense or satisfaction for the slaying or mur 
der of akinsman. Spelman. 


A murderer. 


MAKE 7 


MERE. Famous; great; noted; as 271- 
mere, all famous, Gibs. Camd. 


MAREMIUM. Timber; wood suitable 
for building purposes, 


39 


| 


MAGISTRATE 


the modern lord ehamberiain. 
Law, 37. 


Tayl. Civil 


Magister rerum usus. Use is the mas- 
ter of things. Co. Litt. 2298. Usage is a 


MAGIC. In English statutes. Witch- | Puipal guide in practice. 


craft and sorcery. 


MAGIS. Lat. 
in number; rather. 


More; more fully; more 


Magis de bono quam doe malo lex in- 
tendit. Co. Litt. 78b. The law favors a 
good rather than a bad construction. Where 
the words used in an agreement are suscep- 
tible of two meanings, the one agreeable to, 
the other against, the law, the former is 
adopted. Thus, a bond conditioned “to as- 
sign all offices” will be construed to apply to 
such offices only as are assignable. Chit. 
Cont. 78, 


Magis dignum trehit ad se minus dig- 
num. The more worthy draws to itself the 
less worthy. Yeurb. 20 Hen. VI. 2, arg. 


MAGISTER. In Eneglishlaw. <A mas- 
fer or ruler; a person who has attained to 
some eminent degree in science. Cowell. 

In the civil law. A title of several of- 
fices under the Roman Empire. 


MAGISTER AD FACULTATES. In 
English ecclesiastical law. The title of an 
oificer who grants dispensations; as to mar- 
ry, fo eat fiesh on days prohibited, and the 
Jike. Bac. Abr. “Ecclesiastical Courts,” 
A, 5. 


MAGISTER CANCHELLARIA. In old 
English law. Master of the chancery; mas- 
ter in ehanecery. These oflicers were said 
to be called “meagistri,” because they were 
priests. Latch, 13d, 


MAGISTER EQUITUM. 
horse, 
Empire. 

MAGISTHER LIBELLORUM. Master 


of requests. A title of oflice under the Ro- 
man Empire. 


MAGISTER LITIS. Masterofthe 
suit; the person who controls the suit or its 
prosecution, or has the right so te do, 


MAGISTER NAVIS. In the civil law. 
The master of a ship or vessel. He to whom 
the care of the whole vessel is committed. 
Dig. 14,1, 1, 1, 5. 


MAGISTER PALATII. Master of the 
palace or of the offices. An officer under the 
Toman Empire beariug some resemblance to 


Master of the 
A tithe of office under the Roman 


| 


Magister rerum usus; magistra rerum 
experientia. Use is the master of things; 
experience is the mistress of things. Co. 
Litt. 69, 229; Wing. Max. 752. 


MAGISTER SOCIBETATIS. In the 
civillaw, The master or manager of a part- 
nership; @ maniging partner or‘ general 
agent; a Manager specially chosen by a firm 
to administer the affairs of the partnership. 
Story, Partn. § 95. 


MAGISTERIAL. Relating or pertain- 
ing to the character, office, powers, or duties 
of a magistrate or of the magistraey. 


MAGISTRACY. This term may have a 
more or less extensive signification according 
to the use and connection in which it occurs, 
In its widest sense it includes the whole body 
of public functionaries, whether their offices 
be legislative, judicial, executive, or admin- 
istrative. In a more restricted (and more 
usual) meaning, it denotes the class of officers 
who are charged with the application and ex- 
ecution of the laws. Ina still more confined 
use, it designates the body of judicial officers 
of the lowest rank, and wore especially those 
who have jurisdiction for the trial and pun- 
ishment of petty misdemeanors or the pre- 
liminary steps of a criminal prosecution, such 
as police judges and justices of the peace. 
The term also denotes the office of a magis- 
trate. 


MAGISTRALIA BREVIA. Inold En- 
glish practice. Magisterial writs; writs 
adapted to special cases, and so called from 
being framed by the masters or principal 
clerks of the chancery. Bract. fol. 4180; 
Crabb, Com, Law, 547, 548, 


MAGISTRATE, A public officer belong- 
ing to the civil organization of the state, and 
invested with powers and funect.ons which 
may be either judicial, legislative, or execu- 
tive, 

But the term is commonly used in a nar. 
rower sense, designating, in England, a per- 
son intrusted with the commission of the 
peace, and, in America, one of the class of 
inferior judicial officers, such as justices of the 
peace and police justices, 

A magistrate is un oflicer having power ta 
issue & warrant for the arrest of a person 


MAGISTRATE 


eharged with a public offense. Pen. Code 
Gal. § 807. 


The word “magistrate” does not necessarily lm- 
ply an officer exercising any judicial functions, 
and might very well be held to embrace notaries 
and commissioners of deeds. 57 Mo. 336. 


MAGISTRATEH’S COURT. In Amer- 
ican law. Courts in the state of South Caro- 
lina, having exclusive jurisdiction in mat- 
ters of contract of and under twenty dollars. 

A local court in the city of Philadelphia, 
possessing the criminal jurisdiction of a police 
court and civil jurisdiction in actions involv- 
ing not more than one hundred dollars. It is 
not a court of record. See Const. Pa. art. 
4,§ 12. 


MAGISTRATUS. In thecivil law. A 
magistrate. Calvin. <A judicial officer who 
had the power of hearing and determining 
causes, but whose office properly was to in- 
quire into matters of law, as distinguished 
from fact. Hallifax, Civil Law, b. 3, c, 8. 


MAGNA ASSISA. In old English law. 
The grand assize. Glanv. lib. 2, ee. 11, 12. 


MAGNA ASSISA ELIGENDA. An 
ancient writ to summon four lawful knights 
before the justices of assize, there to choose 
twelve others, with themselves to constitute 
the grand assize or great jury, to try the 
matter of right. The trial by grand assize 
was instituted by Henry IT. in parliament, as 
an alternative to the duel in a writ of right. 
Abolished by 3&4 Wm.IV.c. 27. Wharton. 


MAGNA AVERIA. In old pleading. 
Great beasts, as horses, oxen, ete. Cro. Juc. 
580. 


MAGNA CENTUM. The great hun- 
dred, or six score. Wharton. 


MAGNA CHARTA. The great charter. 
The name of a charter (or constitutional en- 
actment) granted by King John of England 
to the barons, at Runnymede, on June 15, 
1215, and afterwards, with some alterations, 
confirmed in parliament by Henry IIL. and 
Edward I. This charter is justly regarded ag 
the foundation of English constitutional lib- 
erty. Among its thirty-eight chapters are 
found provisions for regulating the adininis- 
tration of justice, defining the temporal and 
ecclesiastical jurisdictions, securing the per- 
sonal liberty of the subject and his rights of 
property, and the limits of taxation, and for 
preserving the liberties and privileges of the 
church. Magna Charta isso called, partly to 
distinguish it from the Cherta de Poresta, 
which was granted about the same time, and 


740 


MAIDEN 


partly by reason of its own transcendent im 
portiunee. 


Magna Charta et Charta de Foresta 
sont appeles les “deux grandes char- 
ters.” 2Inst. 570. JIagna Charta and the 
Charter of the Forest are called the “two 
great charters.” 


MAGNA COMPONERE PARVIS. 
To compare great things with small things. 


MAGNA CULPA. 
negligence. 


MAGNA NEGLIGENTIA. In thecivil 
law. Great or gross negligence. 


Great fault; gross 


Magna negligentia culpa est; magna 
culpa dolus est. Gross negligence is fault; 
gross fault is fraud. Dig. 50, 16, 226. 


MAGNA PRECARIA. In old English 
law. <A greator general reap-day. Cowell; 
Blount. 


MAGNA SHRJEANTIA. In old En- 
glish law. Grand serjeanty. Fleta, lib. 2, 
c. 4, § 1. 


MAGNUM CAPE. In old practice, 
Great or grand cape. 1 Reeve, Eng. Law, 
413. See Granp Care. 


MAGNUM CONCILIUM. In old En- 
glish law. The great council; the general 
council of the realm; afterwards called “par- 
liament.” 1 Bl. Comm. 148; 1 Reeve, Eng. 
Law, 62; Spelman. 

The king’s great council of barons and 
prelates. Spelman; Crabb, Com. Law, 228. 


MAGNUS ROTULUS STATUTO. 
RUM. The great statute roll. The first of 
the English statute roils, beginning with 
Magna Charta, and ending with Edward 
Ill. Hale, Com. Law, 16, 17. 


MAHA-GEN. InHindulaw. A banker 
or any great shop-keeper. 


MAHAL. In Hindu law. Any land or 
public fund pruducing a revenue to the goy- 
ernment of Hindostan. “Jfahalaat” is the 
plural. 


MAHLBRIEF. In maritimelaw. The 
German name for the contract for the build- 
ing of a vessel. This contract contains a 
specification of the kind of vessel intended, 
her dimensions, the time within which she 
is to be completed, the price and times of 
payinent, etc. Jac. Sea Laws, 2-8, 


MATDEN. InScotch law An instru- 
ment formerly used in beheading criminals. 


MAIDEN ASSIZE 


Tt resembled the French guillotine, of which 
it is said to have been the prototype. Whar- 
ton. 


MAIDEN ASSIZE. In English law. 
Originally an assize at which no person was 
condemned to die. Now itis a session of & 
criminal court at which there are no prison- 
ers to be tried. 


MAIDEN RENTS. A fine paid by the 
tenints of some manors to the lord for a li- 
eense to marry a daughter. Cowell. Or, 
perhaps, for the lord’s omitting the custom 
of marcheta, (q- t.) 


MAIGNAGIUM. A brasier’s shop, or, 
perhaps, a house. Cowell. 


MAIHEM. See Mayvyem; Mar. 
MAIHEMATUS. Maimed or wounded. 


MAIHEMIUM, 
Mayhem, (q. v-) 


In old English Jaw. 


Maihemium est homicidium inchoa- 
tum. § Inst. 118. Mayhem is ineipient 
homicide. 


Maihemium est inter crimina majora 
minimum, 6t inter minora maximum. 
Co. Litt. 127, Mayhem is the least of great 
crimes, and the greatest of small. 


Maibemium est membri mutilatio, et 
dici poterit, ubi aliquis in aliqua parte 
sui corporis effectus sit inutilis ad pug- 
nandum. Co. Litt. 126. Mayhem is the 
mutilation of a member, and can be said to 
take place when a man is injured in any part 
of his body so as to be useless in fight. 


MAIL. As applied to the post-office, this 
term means the carriage of letters, whether 
applied to the bag into which they are put, 
tie coach or vellicle by means of which they 
are transported, or any other means employed 
for their carriage and delivery by public au- 
thority. 6 Daly, 560. It may also denote 
the letters or other matter so carried. 

The term “mail,” as used in Rev. St. U. 
B. § 5469, relative to robbing the mails, may 
Tean either the whole body of matter trans- 
ported by the pustal agents, or any lelfer or 
package forming a component pari of it, 
41 Fed. Kep. 130. 

Mail also denotes armor, a3 in the phrase a 
“coat of mail.” 

In Scotch law. Rent; a rent or tribute. 
A tenant who pays a rent is called a “mail- 
payer,” “mailer,” or “mail-man.” Skene. 


741 


MAINE-PORT 


MAIL MATTER. This term Includes 
letters, packets, ete., received for transmis- 
sion, and to be transmitted by post fo the 
person to whom such matter is directed. 30 
Fed. Rep. 820, 


MAILABLE. Suitable or admissible for 
transmission by the mail; belonging to the 
classes of articles which, by the lawa and 
postal reguiations, may be sent by post. 


MAILE. In old English iaw. A kind 
of ancient money, or silver half-pence; a 
small rent. 


MAILED. This word, as applied to a 
letter, means that the letter was properly 
prepared for transmission by the servants 
of the postal department, and that it was 
put in the custody of the officer charged 
with the duty of forwarding the mail, 67 
Mo. 1638. 


MAILLS AND DUTIES. In Scotch 
law. The rents of an estate. Bell. 


MAIM. To deprive a person of a mem- 
ber or part of the body, the loss of which 
renders him less capable of ighting; to com- 
mit mayhem, (gq. v.) 

in this respect, “to wound” is distinguishable 
from “to maim;”for the latter implics a perma- 
nent injury, whereas a wound is any mutilation or 
laceration which breaks the continuity of the out- 
er skin, i1 Cox, Crim. Cas. 125, 


MAIMING. Depriving of any necessary 
part. See MAYHEM. 


MAIN. L.Fr. Aband. Morecommonly 
written “meyn.” 


MAITN-A-MAIN. L. Fr. 
Kelham. 


MAIN CHANNEL. The main channel 
of a river is that bed over which the prinei- 
pal volume of water flows. $1 Fed. Rep. 


Immediately. 


755. 
MAIN-RENT. Vassalage. 
MAIN SHA. The open, uninclosed 


ocean; or that portion of the sea which is 
without the fauces terre on the sen-coast, in 
contradistinction to that which is surround- 
ed or inclosed between narrow headlands or 
promontories. & Mason, 295; 73 N. Y. 396; 
2 ast, Br G. @ 1% 8 9: TN. Ye boaed 
Barb. 208. 


MAINAD. A false oath; perjury. 
Cowell. 


MAINE-PORT. A small tribute, com 
monly of loaves of bread, which in some 


MAINOUR 


places the parishioners paid to the rector in 
lieu of small tithes. Cowell. 


MAINOUR. Incriminallaw. An arti- 
cle stolen, when found in the hands of the 
thief. A thief canght with the stolen goods 
in his possession is said to be taken “with 
the mainour,” that is, with the property in 
manu, in his hands. 4 Bl. Comm. 307. 


The word seems to have corresponded with the 
Saxon “handhabend,” (q. v.) In modern law it 
has sometimes been written as an English word 
“manner,” and the expression “taken in the man- 
ner” occurs in the books. Crabb, Bas. Law, 154. 


MAINOVRE, or MAINGIUVRE. A 
trespass committed byhand. See 7 Rich. II. 
ce. 4. 


MAINPERNABLE. Capable of being 
bailed; bailable; admissible to bail on giving 
surety by mainpernors. 


MAINPHRNOR. In old practic. A 
surety for the appearance of a person under 
arrest, wlio is delivered out of custody into the 
hands of his bail. ‘“Mainpernors” differ from 
“bail” in that a man’s bail may imprison or 
surrender him up before the stipulated day 
of appearance; mainpernors can do neither, 
but are barely sureties for his appearance at 
theday., Bail are only sureties that the party 
be answerable for the special matter for which 
they stipulate; mainpernors are bound to 
produce him to answer all charges whatso- 
ever. 3 Bl. Comm, 128. Other distinctions 
are made in the old books. See Cowell, 


MAINPRISE. The delivery of a person 
into the custody of mainpernors, (yg. v.) 
Also the name of a writ (uow obsolete) com- 
manding the sheriff to take the security of 
mainpernors and set the party at liberty. 


MATNSWORN. Forsworn, by making 
false oath with hard (main) on book. Used 
in the north of England. Lrownl. 4; Hob. 
125. 


MAINTAIN. To maintain an action or 
suit is to commence or institute it; the term 
imports the existence of a cause of action. 8 
Minn. 105, (Gil. 80, 81.) 


MAINTAINED. In pleading. A tech. 
nical word indispensable in an indictment 
for maintenance. 1 Wils, 325. 


MAINTATNOR, Incriminallaw. One 
that maintains or seconds a cause depending 
In suit between others, either by disbursing 
noney or making friends for either party to- 
wards hishelp. Blount. One who is guilty 
of maintenunce (q. v.) 


742 


——————_—————— 


MAISTER 


MAINTENANCE. Sustenance; sup- 
port; assistance. Thefurnishing by one per- 
son to another, for his support, of the means 
of living, or food, clothing, shelter, etc., par- 
ticularly where the legal relation of the par- 
ties is such that one is bound to support the 
other, as between father and child, or hus- 
band and wife. 

In criminal law. An unauthorized and 
officious interference in a suit in which the 
offender has no interest, to assist one of the 
parties to it, against the other, with money 
or advice to prosecute or defend the action. 
1 Russ. Crimes, 254. 

Maintenance, in general, signifies an unlawful 
taking in hand or upholding of quarrels and sides, 
to the hindrances of common right. Co. Litt, 368); 
Hawk, P. C, 298. 

The intermeddling of a stranger in a suit, forthe 
purpose of stirring up strife and continuing litigu- 
tion. 35 Vb. 69, 

Maintenance is the assisting another person ina 
lawsuit, without having any concern in the sub- 
ject. §$ Johns. 220, 

Maintenance is where one officiously intermed- 
dies in a suit which in no way belongs to him. The 
term does not include all kinds of aid in the prose- 
cution or defense of another’s cause. It does not 
extend to persons having an interest in the thing 
in controversy, nor to persous of kin or affinity to 
either party, nor to counsel or attorneys, for their 
acts are not officious, nor unlawful The distinc- 
tion between “champerty” and “maintenance” is 
that maintenance is the promoting, or undertak- 
ing to promote, a suit by one who has no lawful 
cause to do so, and champerty is an agreement for 
a division of the thing in controversy, in the event 
of success, as a reward for the unlawful assist- 
ance. 3 Har. (Del.) 208, 

“Maintenance, ” at common law, signifies an un- 
lawful taking in hand or upholding of quarrels or 
sides, tothe disturbance or hindranes of common 
right. The maintaining of one side, in considera 
tion of some bargain to have part of the thing in 
dispute, is called “champerty.” Champerty, there- 
fore, is a species of maintenance, 40 Conn. 570. 


MATOR. An old form of “mayor.” 


MATIRE. In old Scotch law. An officer 
to whom process was directed. Otherwise 
called “miair of fie,” (fee,) and classed with 
the “serjand.” Skene. 


MAIRIE. InFrenchlaw. The govern- 
ment building of each commune. It con- 
tains the record office of all civil acts and the 
list of voters; and it is there that political 
and municipal elections take place. Arg, 
Fr. Mere. Law, 566, 


MAISON DE DIEU. Fr. A hospital; 
an almshouse; amonastery. St. 39 Eliz. c. 5. 
Literally, “house of God.” 


MAISTER. An old form of “master.” 


MAISURA 7438 


MAISURA. A house, mansion, or farm. 
Cowell. 


MAITRE. Fr. In French maritime 
law. Master; the master or captain of a 
vessel. Ord. Mar. liv. 2, tit. 1, art. 1. 


MAJESTAS. Lat. In Roman law. 
The majesty, sovereign authority, or supreme 
prerogative of the state or prince. Also a 
shorter form of the expression “erimen ma- 
jestatis,” or “crimen lese majestatis,” an 
offense against sovereignty, or against the 
safety or organie life of the Roman people; 
t. ¢., high treason. 


MAJESTY. Royal dignity. A term 
used of kings and emperors as a title of 
honor. 


MAJOR. A person of full age; one who 
is no longer a minor; one who has attained 
the management of his own concerns and the 
enjoyment of his civic rights. 

In military law. ‘The officer next in 
rank above a captain. 


MAJOR ANNUS. The greater year; 
the bissextile year, consisting of 366 days. 
Bract. fol. 3596. 


MAJOR GENERAL. In military law. 
An officer next in rank above a brigadier 
general, and next below a lieutenant general, 
and who usually commands a division or an 
army corps. 


Major hereditas venit unicuique nos- 
trum a jure et legibus quam a parenti- 
bus. 2Inst.56. A greater inheritance comes 
to every one of ns trom right and the laws 


" than from parents. 


Major numerus in se continet mi- 
norem. Dract.fol. 16. The greater number 
contains in itself the less. 


MAJORA REGALIA, The king’s dig- 
nity, power, and royal prerogative, as opposed 
to his revenue, which is comprised in the 
minora regalia. 2 Steph. Comm. 475; 1 Bl. 
Comm. 240, 


Majore pena affectus quam legibus 
statuta est, non est infamis. Ong affected 
with a greater punishment than is provided 
by law is not infamous. 4 Inst. 66. 


MAJORES. In Roman law and gen- 
ealogical tables. The male ascendants be- 
yond the sixth degree. 

In old English law. Greater persons; 
persons of higher condition or estate, 


MAKE A CONTRACT 


Majori summs minor inest. In the 
greater sum the less is included. 2 Rent, 
Comm. 618; Story, Ag. § 172. 


MAJORITY. Fullage; theageat which, 
by law, a person is entitled to the manage- 
ment of his owe affairs and to the enjoyment 
of civic rights. The opposite of minority. 
Also the status of a person who isa major in 
ace. 

In the law of elections, majority signi- 
fies the greater number of votes. When there 
are only two candidates, he who receives the 
greater number of the votes cast is said to 
havea majority; when there are more than 
two competitors for the same office, the per- 
son who receives the greatest number of votes 


| has a plurality, but he has not a majority 


unless he receives a greater number of votes 
than those cast for all his competitors com- 
bined. 

In military affairs, majority denotes the 
rank and commission of a major. 


Majus dignum trahit ad se minus 
dignum. The more worthy draws to itself 
the less worthy. Co. Litt. 43, 3556; Bract. 
tol. 175; Noy, Max. p. 6, max. 18, 


MAJUS JUS. In old practice. Greater 
right or more right. A plea in the old real 
actions. 1 Reeve, Eng. Law, 476. 2Majus 
jus merum, more mere right. Bract. fol. 31. 


MAKE. 1. To cause to exist; to form, 
fashion, or produce; to do, perform, or exe- 
cute; as to make an issue, to make oath, to 
make a presentment, 

2. To do in form of law; to perform with 
due formalities; to execute in legal form; as 
to make answer, to make a return. 

3. To execute as one’s act or obligation; to 
prepare and sign; to sign, execute, and de- 
liver; as to make a conveyance, to make a 
note. 

4. To conclude, determine upon, agree to, 
or execute; as to make a contract. 

5. To cause to happen by one’s neglect 
or omission; as to make default. 

6. To make acquisition of; to procure; to 
collect; as to make the money on an execus 
tion, 

7. To have authority or influence; to sup- 
port or sustain; as in the phrase, “This prec- 
edent makes for the plaintiff.” 


MAKE AN ASSIGNMENT. To frans- 
fer one’s property to an assignee for the ben- 
efit of one’s creditors. 

MAKE A CONTRACT. Toagree upon, 
and conclude or adopt, a contract. In caseof 


MAKE DEFAULT 


a written contract, to reduce it te writing, 
execute it in due form, and deliver itas bind- 
ing. 


MAKE DEFAULT. To fail or be 
wanting in some legal duty; particularly, to 
omit the entering of an appearance when 
duly summoned in an action‘at law or other 
judicial proceeding, to neglect to obey the 
command of a subpoena, ete. 


MAKE ONE’S FAITH. A Scotch 
phrase, equivalent to the old English phrase, 
“to make one's law.” 


MAKER. One who makes, frames, or 
ordains; as a “law-maker.” One whomakes 
or executes; as the maker of a promissory 
note. 


MAKING LAW. Inold practice. The 
formality of denying a plaintiffi’s charge un- 
der oath, in open court, with compurgators. 
One of the ancient methods of trial, frequent- 
ly, though inaccurately, termed “waging 
law,” or “wager of law.” 3 Bl. Comm. 
341. 


MAL. A prefix meaning bad, wrong, 
fraudulent; as maladministration, malprac- 
tice, malversation, etc. 


MAL GREE. L. Fr. Against the will; 
without theconsent. IZLence the single werd 
“malgre,” and more modern ‘“maugre,” 
(q- 0) 


MAL-TOLTE. Fr. Inold French law. 
A term said to havearisen from the usurious 
gains of the Jews and Lombards in their 
management of the public revenue. Steph. 
Lect. 372. 

MALA. Lat. 


MALA FIDES. Bad faith. The oppo- 
site of bona fides, (g. 0.) JMala fide, in bad 
faith. Mala fidei possessor, a possessor in 
bad faith. Mackeld. Rom. Law, § 297. 


Mala grammatica non vitiat chartam. 
Sed in expositions instrumentorum mala 
grammatica quoad fleri possit evitanda 
est. Bad grammar does not vitiate a deed. 
But in the exposition of instruments, bad 
grammar, as far as it can be done, is to be 
avoided. 6 Coke, 39; Broom, Max. 686. 


MALA IN SE. Wrongs in themselves; 
acts morally wrong; offenses against con- 
science. 1 Bl. Comm, 57, 58; 4 Bi. Comm. 8. 


Bad; evil; wrongful. 


MALA PRAXIS. Malpractice; unskill- 
ful management or treatment. Particularly 
applied to the neglect or unskillful manage- 


744 


MALESON 


ment of a physician, surgeon, or apothecary. 
3 Bl. Comm, 122. 


MALA PROHIBITA. Prohibited 
wrongs or offenses; acts which are made 
offenses by positive laws, and projiibited as 
such. 1 Bl Comm. 57, 58; 4 BJ. Comm. 8 


MALADMINISTRATION. This term 
is used, in the law-books, interchangeably 
with mis-administration, and both words 
mean “wrong administration.” 14 Neb. 
183, 15 N. W. Rep. 331. 


MALANDRINUS. In old English law. 
A thief or pirate. Wals. 338. 


MALARY. In Hindu law. Judicial; 
belonging to a judge or magistrate. 


MALBERGE. A hill where the people 
assembled at a court, like the English assiz- 
es; which by the Scotch and Irish were called 


“parley hills.” Du Cange. 

MALCONNA. In Hindu law. A treas- 
ury or store-house. 

MALE. Of the masculine sex; of the sex 


that begets young. 


MALE CREDITUS. In old English 
law. Unfavorably thought of; in bad repute 
or credit. Bract. fols. 116, 154. 


Maledicta est expositio qux corrum- 
plttextum. That is a cursed interpretation 
which corrupts the text. 4 Coke, 35a; 
Broom, Max. 622. 


MALEDICTION, A curse, which was 
anciently annexed to donations of lands made 
to churches or religious houses, against those 
who should violate their rights. Cowell. 


MALEFACTION. Acrime; an offense, 


MALEFACTOR. He who is guilty, or 
has been convicted, of some crime or offense, 


Maleficia non debent remanere impuni- 
ta; et impunitas continuum aflectum 
tribuit delinquenti. 4 Coke, 45. Evil 
deeds ought not to remain unpunished; and 
impunity affords continual incitement to the 
delinquent. 


Maleficia propositis distinguuntur. 
Jenk. Cent. 290, Evil deeds are distin- 
guished from evil purposes, or by their pur- 
poses. 

MALEFICIUM. 
Waste; damage; tort; injury. 


In the civil law. 
Dig. 5, 18, 1. 


MALESON, or MALISON. A curse. 


MALESWORN 


MALESWORN, or MALSWORNK. 
Forsworn. Cowell. 


MALFEASANCE. The wrongful or un- 
just doing of some act which the doer has no 
right to perform, or which he has stipulated 
by contiact not todo. It differs from “mis- 
feasance” and “non-feasance,” (which titles 
see.) See 1 Chit. Pr. 9; 1 Chit. Pl. 134, 


MALFETRIA. In Spanish law. Of- 
fense. White, New Recop. b. 2, tit. 19, ¢. 
1, § 1. 


MALICE. In criminal law. In its legal 
pense, this word does not simply meun ill 
will against a person, but signifies a wrong- 
ful act done intentionally, without just cause 
orexcuse. 4 Barn. & C. 255. 


745 


A conscious violation of the law {or the | 


prompting of the mind to commit it) which 
operates to the prejudice of another person, 

About as clear, comprehensive, and correct 
adefinition as the authorities afford is that 
“malice is a condition of the mind which 
shows a heart regardless of social duty and 
fatally bent on mischief, the existence of 
which is inferred from acts committed or 
words spoken.” 8 Tex. App. 109, 

“Malice,” in ita common acceptztion, means ill 
willtowards some person. In its legal sense, it 
applies to 2 wrongful act done intentionally, with- 
out legal justification or excuse, 1 Ind. 844. 

Aman may do au act willfully, and yet be free 
of malice. But be cannot do an act maliciously 
without at the same time doing it willfully. The 
malicious doing of an act ineludes the willful do- 
ing of it. Maliceincludes intent and will 66 Me. 
828, 

Malice is either express or implied. The 
former is the case where the party declares or 
manifests a positive intention to commit the 
érime; while implied malice is gathered, as 
an inference of law, from the facts and cir- 
cumstances proved. 

In the definition of “murder,” malice 
aforethought exists where the person doing 


the act which causes death has an intention | 


to cause death or grievous bodily harm to 
any person, (whether the person is actually 
killed or not,) or to commit any felony what- 
ever, or hag the knowledge that the act will 
probably cause the death of or grievous bou- 
ily hurm to some person, although he does 
not desire it, or even wishes that it may not 
be caused. Steph. Crim. Dig. 144; 1 Kuss. 
Crimes, 641. 

The words “malice aforethought” long ago ac- 
quired in law asettled meaning, somewhat different 
from the popular one, In their legal sense they do 
not import an actual intention to kill the deceased. 
The idea is not spite or malevolence to the deceased 


Ee 


MALITIA PRACOGITATA 


in particular, but evil design in general, the dictate 
of a wicked, depraved, and malignant heart; not 
preméditated personal hatred or revenge towards 
the person killed, but that kind of unlawiul pur- 
pose which, if persevered in, must produce mia- 
chief. 49 N. H. 399. 


MALICH PREPENSE. Malice afore- 
thought; deliberate, predetermined malice. 2 
Rolle, 461. 


MALICIOUS. Evincing majice; done 
with malice and an evil design; willful. 


MALICIOUS ABANDONMENT, In 
criminal law. The desertion of a wife or 
busband without just cause. 


MALICIOUS ARREST. An arrest 
made willfully and without probable cause, 
but in the course of a regular proceeding. 


MALICIOUS INJURY. An injury 
committed against a person at the prompting 
of malice or hatred towards him, or done 
spitefully or wantonly. 


MALICIOUS MISCHIEF. A term ap- 
plied to the willful destruction of personal 
property, from actual ill will or resentment 
towards its owner or possessor. 8 Dey. & 
B. 130. 

Malicious mischief or damage is a species of in- 
jury to private property, which the law considers 
a3 a public crime. This is such as is done, not 
animo surandi, or with an intent of gaining by 
another’s loss, but either out of a spirit of wanton 
cruelty or wicked revenge. In this latter light it 
bears a near relation to the crime of arson, for, as 
that affects the habitation, 80 does this the proper- 
ty, of individuais; and therefore any damage aris- 
ing from this mischevious disposition, though oniy 
a trespass at the common law, is now, by several 
statutes, nade severely penal Jacob. 


MALICIOUS PROSECUTION. A ju- 
dicial proceeding instituted against a person 
out of the prosecutor’s malice and ill will, 
with the intention of injuring him, without 
probable eause to sustain it, the process and 
proceedings being regular and formal, but 
not justified by the facts. For this injury 
ap action on the ease les, called the “action 
of malicious prosecution.” 


MALIGNARE. To malign or alander; 
also to maim. 
MALITIA. Lat. Actual evil design; 


express malice, 


Malitia est acida; est mali animi af- 
fectus. Malice is sour; it is the quality of a 
bad mind. 2 Bulst. 49. 


MALITIA PRACCGITATA. Matice 
aforethought. 


MALITIA SUPPLET ATATEM 


Malitia supplet etatem. Malice sup- 
plies [the want of]age. Dyer, 1048, Broom, 
Max. 316. 


Malitiis hominum est obviandum. 
The wicked or malicious designs of men 
must be thwarted. 4 Coke, 156. 


MALLUM. In old European law. A 
court of the higher kind in which the more 
important business of the county was dis- 
patched by the count or earl, Spelman. A 
public national assembly. 


MALO ANIMO. Lat. With an evil 
mind; with a bad purpose or wrongful in- 
tention; with malice, 


MALO GRATO. Inspite; unwillingly. 


MALOSENSU. Inan evil sense or 
meaning; with an evil signification. 


MALPRACTICE. See Mata PRAXIS. 
MALT MULNA. A quernormalt-mill. 


MALT-SHOT or MALT-SCOT. A 
certain payment for making malt, Somner. 


MALT-TAX. An excise duty upon malt 
in Engiand. 1 Bl. Comm, 813; 2 Steph. 
Comin. 581. 


MALTREATMENT. In reference to the 
treatment of his patient by a surgeon, this 
term signifies improper or unskillful treat- 
ment; it may result either from ignorance, 
neglect, or willfulness; but the word does 
not necessarily imply that the conduct of the 
surgeon, in his treatment of the patient, is 
either wilifully or grossly careless. 2 Allen, 
142. 


MALUM. Lat. InRomanlaw. A mast; 
the mast of a ship. Dig. 50, 17, 242, pr. 
Held to be part of the ship. Id. 


MALUM IN SH. A wrong initself; an 
act or case involving illegality from the very 
nature of the transaction, upon principles of 
natural, moral, and public law. Story, Ag. 
§ 346. 

An act is sald to ba malum in se when it is in- 
herently and essentially evil, that is, immoral in 
its nature and injurious in its consequences, with- 
out any regard to the fact of its being noticed or 
punished by the law of the state. Such are most 
or all of the offenses cognizable at common law, 
(without the denouncement of a statute:) as mur- 
der, larceny, etc. An actis said to be mulwm pro- 
hibitum when it is wrong only because prohibited ; 
that is, it is not inherently immoral, but becomes 
illegal because its commission is expressly forbid- 
den by positive law. Many acts contrary to excise 
or revenue laws are considered by moralists to be 
of this character. 


746 


has not an efficient, but a deficient, cause. 


Malum non presumitur. Wickednes 
is not presumed. Branch, Prine.; 4 Coke, 
72a. 


MALUM PROHIBITUM. A wrong 
prohibited; a thing which is wrong because 
prohibited; an act which is not inherently 
immoral, but becomes so because its commis. 
sion is expressly forbidden by positive law; 
an act involving an illegulity resulting from 
positive law. Contrasted with malum in ee, 
Story, Ag. § 346, 


Malum quo communius eo pejus. The 
more common an evil is, the worse it is, 
Branch, Prine. 


Malus usus abolondus est. A bad or 
invalid custom is [ought] to be abolished 
Litt. § 212; Co. Litt. 141; 1 Bl. Comm. 76; 
Broom, Max. 921. 


MALVEILLES. In old English law. Ill 
will; crimes and misdemeanors; malicious 
practices. Cowell. 


MALVEIS PROCURORS. Such as 
used to pack juries, by the nomination of 
either party in @ cause, or other practice. 
Cowell. 


MALVEISA. A warlike engine to batter 
and beat down walls. 


MALVERSATION. In French law. 
This word is applied to all grave and punish- 
able faulls committed in the exercise of a 
charge or commission, (office,) such as cor. 
ruption, exaction, concussion, larceny. Merl, 
Repert. 


MAN. A buman being. A person of the 
male sex. A male of the human species 
above the age of puberty. 

In feudal law. A vassal; a tenant or 
feudatory. The Anglo-Saxon relation of lord 
and man was originally purely personal, and 
founded on mutual contract. 1 Spence, Ch. 
37. 


MAN OF STRAW. See MEN OF | 
STRAW. | 


MAWACLES. Chains for the hands; 
shackles. 
MANAGH. To coandnet; to carry on; to 


direct the concerns of a business or establish- 
ment. Generally applied to affairs that are 
somewhat complicated and that involve skill 
and judgment. 


— 


MANAGER 


MANAGER. A person chosen or ap- 
pointed to manage, direct, or administer the 
affairs of another person or of a corporation 
or company. 


MANAGHRS OF A CONFERENCE. 
Members of the houses of parliament ap- 
pointed to represent each house at a confer- 
ence between the two houses. It is an an- 
¢ienf rule that the number of commons 
named ior a conference should be double 
those of the lords. May, Parl. Pr. c. 16. 


MANAGING AGENT. A person who 


747 


is invested with general power, involving , 


the exercise of julement and discretion, as 
distinguished from an ordinary agent or em- 
ploye, who acts in an inferior capacity, and 
under the direction and control of superior 
authority, both in regard te the extent of the 
work and the manner of executing the same, 
19 Hun, 408. 


MANAGING OWNER OF SEIP. 
The managing owner of a ship is one of sev- 
era! co-owners, to whom the others, or those 
of them whe join in the adventure, have 
delegated the management of the ship. He 
has authority to do all things usual and nec- 
essary in the management of the ship and 
the delivery of the cargo, to enable her to 
prosecute her voyage and earn freight, with 
the right to appoint an agent for the pur- 
pose. 6 Q. B. Div. 93; Sweet. 


MANAGIUM. A munsion-house or 
dwelling-place. Cowell. 


MANAS MEDIA, Men of a mean con- 
dition, or of the lowest degree. 


MANBOTE. In Saxon law. A com- 
pensation or recormpense for homicide, par- 
ticularly due to the lord for killing his man 
or yassal, the amount of which was regulated 
by that of the were. 


MANCA, MANCUS, or MANCUSA. 
A.square pisce of gold coin, commonly valued 
at thirty pence. Cowell. 


MANCEPS. In Reman law. <A pur- 
ehaser; one who took the article sold in his 
hand; a formality observed in certain sales. 
Calvin. A farmer of the public taxes. 


MANCHE-PRESENT. Abribe; a pres- 
ent from the donor’s own hand. 


MANCIPARE. InRomanlaw. Tosell, 
glienate, or make over to another; to sell 
with certain formalities; toselia person; one 
of the forms observed in the process of eman- 
cipation. 


MANCOMUNAL 


MANCIPATE. To enslave; to bind; to 
tie. 


MANCIPATIO. In Roman law. A cer- 
tain ceremony or formal process anciently re- 
quired to be performed, to perfect the sale or 
conveyance of res mancipi, (jand, houses, 
slaves, horses, or cattle.) The parties wera 
present, (vendor and vendee,) with five wit- 
nesses and a person called “tibripens,” who 
held a balance or seales. A set form of words 
was repeated on either side, indicative of 
transfer of ownership, and certain prescribed 
gestures performed, and the vendee then 
struck the scales with a piece of copper, 
thereby symbolizing the payment, or weighing 
out, of the stipnlated price. 

The ceremony of mancipatio was used, in 
later times, in one of the forms of making a 
will, The testator acted as vendor, and the 
heir (or familie emptor) as purchaser, the 
latter symbolically Guying the whole estate, 
or succession, of the former, The ceremony 
was also used by a father in maktng a licti- 
tious sale of his son, which sale, when three 
times repeated, efiecluated the emancipation 
of the son. 


MANCIPI RES. In Roman law. Cer- 
tain elusses of things which could not be 
aliened or transferred except by means of a 
certain formal ceremony of conveyance calied 
“mancipatio,” {q, 0.) These included land, 
houses, slaves, horses, and cattle. Ail other 
things were called “res nee manvipt.” The 
distinction was abolished by Justinian. The 
distinction corresponded as nearly as may be 
to the early distinction of English law into 
real and personal property; ves manctpt being 
objects of a military or agricultural character, 
and ves nee mancipi being all other subjects of 
property. Like porsonal estate, res nec man 
cipt were not originally either valuable tm se 
or valued. Grown. 


MAWNCIPIUM. In Roman law. Tha 
momentary condition in which a /i/ius, ete., 
might be when in course of emancipation from 
the poiestas, and before that emancipation 
was absolutely complete. The condition was 
not like the dominica potestas over slaves, 
but slaves are frequently called “mancipia” 
in the non-legal Koman authors. Grown. 


MAWCIPLE. A clerk of the kitchen, or 
caterer, especially in colleges. Coweil. 


MANCOMUNAL. InSpanishlaw. An 
obligation is said to be mancomunal when 
one person assumes the contract or debt of 


MANDAMIENTO 


another, and makes himself liable to pay or 
fulfill it. Schm. Civil Law, 120, 


MANDAMIENTO,. In Spanish law. 
Commission; authority or power of attorney. 
A contract of good faith, by which one per- 
son commits to the gratuitous charge of an- 
other his affairs, and the latter accepts the 
charge. White, New Recop. b. 2, tit. 12, ¢. 1. 


MANDAMUS. Lat. We command, 
This is the name of a wril (formerly a high 
prerogative writ) which issues from a court 
of superior jurisdiction, and ig directed to a 
private or municipal corporation, or any of 
its officers, or to an executive, administra- 
tive, or judicial officer, or to an inferior court, 
commanding the performance of a particular 
act therein specified, and belonging to his or 
their public, official, or ministerial duty, or 
directing the restoration of the complainant 
to rights or privileges of which he has been 
illegally deprived. 

The action of mandamus is one, brought in 
a court of competent jurisdiclion, to obtain an 
order of such court commanding an inferior 
tribunal, board, corporation, or person to do 
or not to do an act the performance or omis- 
sion of which the law enjoins as a duty re- 
sulting from an ollice, trust, or station. 
Where discretion is left to the inferior tri- 
bunal or person, the mandamus can only 
compel it to act, but cannot control such 
discretion. Rev. Code lowa, 1880, § 3373. 

The writ of mandamus is either peremp- 
tory or aliernative, according as it requires 
the defendant absolutely to obey its behest, 
or gives him an opportunity to show cause to 
the contrary. It is the usual practice to is- 
sue the alternative writ first, This com- 
mands the defendant to do the particular act, 
or elsa to appear and show cause against itat 
aday named. If he neglects to obey the 
writ, and either makes default in his appear- 
ance or fails to show good cause against the 
application, the peremptory mandamus is- 
sues, which commands him absolutely and 
without qualification to do the act. 


MANDANS. In the civil law. The em- 
ploying party in a contract of mandate. One 
who gives a thing in charge to another; one 
who requires, requests, or employs another 
todo some act for him. Inst. 5, 27,1, et seq. 


MANDANT. In Frenchand Scotch law. 
The employing party in the contract of man- 
datum, or mandate. Story, Bailm, § 138. 


Mandata licita recipiunt strictam in- 
terpretationem, sed illicita latam et ex- 


748 


MANDATE 


tensam, Lawful commands receive a strict 
interpretation, but unlawful commands a 
broad and extended one. Bac, Max. reg. 16. 


MANDATAIRE. Fr. In French law. 
A person employed by another to do some 
act for him; a mandatary. 


Mandatarius terminos sibi positos 
transgredi non potest. A mandatary can- 
not exceed the limits assigned him. Jenk, 
Cent. 53. 


MANDATARY. He to whom a man- 
date, charge, or commandment is given; also, 
he that obtains a benefice by mandamus. 


MANDATE. In practice. A judicial 
command or precept proceeding from a court 
or judicial officer, directing the proper officer 
to entorce a judgment, sentence, or decree, 
Jones, Bailm. 52. ; 

In the practice of the supreme court of the 
United States, the mandate is a precept or or- 
der, issued upon the decision of an appeul or 
writ of error, directing the action to be taken, 
or disposition to be made of the ease, by the 
inferior court. 

In some of the state jurisdictions, the 
name “mandate” has been substituted for 
“mandamus” ag the formal title of that writ. 

In contracts. <A bailment of property in 
regard to which the bailee engages to do 
some act without reward. Story, Bailm. 
§ 137. 

A mandate ig a contract by which a lawful 
business is committed to the management of 
another, and by him undertaken to be per- 
formed gratuitously. Tho mandatary is 
bound to the exercise of slight diligence, and 
is responsible for gross neglect. The fact 
that the mandator derives no benefit from the 
acts of the mandatary is not of itself evidence 
of gross negligence, 42 Miss, 526. 

A mandate, procuration, or letter of at- 
torney is an act by which one person gives 
power to another to transact for him and in 
his name one or several affairs, The man- 
date may take place in five different manners, 
—for the interest of the person granting ib 
only; for the joint interest of both parties; 
tor the interest of a third person; for the 
interest of a third person and that of the 
party granting it; and, finally, for the inter- 
est of the mandatary and a third person. 
Civil Code La. arts. 2985, 2986, 


Mandates and deposits closely resemble each 
othar; the distinction being that in mandates the 
care and servics are the principal, aud the cus- 
tody the accessory, while in deposits tha custody 
is the principal thing, and the careand service are 
Inetely accessory. Story, Bailm. § 140. 


_ reetion. 
drawer to his banker to pay the amount to 


: 


‘The word may also denote a request or di- 
Thus, a check is a mandate by the 
the transferee or holder of the check. 1 Q. 
B, Div. 33. 

In the civillaw. The instructions which 
the smperor addressed to a public function- 
ary, and which were rules for his conduct. 
These mandates resembled those of the pro- 
consuls, the mandata jurisdictio, and were 
ordinarily binding on the legates or lieuten- 
ants of the emperorin the imperial provinces, 
and there they had the authority of the prin- 
cipal edicts. Sav. Dr. Rom. c. 8, § 24, no. 4. 


MANDATO. In Spanishlaw. The con- 
tract of mandate. Escriche. 


MANDATO, PANES DE. Loaves of 
bread given to the poor upon Maundy Thurs- 
day. 

MANDATOR. The person employing 
another to perform a mandate, 


MANDATORY. Containing a com- 
mand; preceptive; imperative; peremptory. 
A provision in a statute is mandatory when 
disobedience to it will make the act done un- 


der the statute absolutely void; if the pro- | 


vision is such that disregard of it will con- 
stitute an irregularity, but one not necessa- 
rily fatal, it is said to be directory. So, the 
mandatory part of a writ is that which com- 
mands the person to do the act specified. 


MANDATORY INJUNCTION. In 
equity practice. An order compelling a de- 
fendant to restore things to the condition in 
which they were at the time when the plain- 


tiff's complaint was made. 383 Law J Eq. 
{N. S.) 393. 
MANDATUM. In the civil law. The 


contract of mandate, (¢. v.} 


MANDAVI BALTIVO. (I have com- 
manded or made my mandate to the bailiff.) 
In English practice. The return made by a 
sheriff, where the bailiff of a liberty has the 
execution of a writ, that he has commanded 
the bailiff to execute it. 1 Tidd, Pr. 309; 2 
Tidd, Pr. 1025. 


MANENTES. 
Cowell. 

MANERA. In Spanishlaw. Manner or 
mode. las Partidas, pt. 4, tit. 4, 1. 2. 


MANERIUM. In old English law. A 
manor. 


Tenants. Obsolete. 


Manerium dicitur a manendo, secun- 
dum excellentiam, sedes magna, fixa, 


MANDATE 749 


MANIPULUS 


et stabilis. Co. Litt. 58. A manor is so 
called from manendo, according to its excel- 
lence, a seat, great, fixed, and firm. 


MANGONARE. 
To buy in a market. 


In old English law. 


MANGONELLUS. A warlike instrn- 
ment for casting stones against the walls of 
acastle. Cowell. 


MANHOOD. Infeudallaw. Atermde 
noting the ceremony of duing homage by the 
vassal to his lord. The formula used was, 
“Devenio vester homo,” I become your wan. 
2 Bl. Comm, 54. 

To arrive at manhood means to arrive at 


twenty-one years of age. 1 Dev. & B. 
Eq. 585. 
MANIA. “Mania is that form of insani- 


ty where the mental derangement is accom- 
panied with more or less of excitement. 
Sometimes the excitement amounts toa fury. 
The individual in such cases is subject to hal- 
Jucinations and illusions. He is impressed 
with the reality of events which have never 
occurred, and of things which do not exist, 
and acts more or less in conformity with his 
belief in these particulars, The mania may 
be general, and affect all or most of the op- 
erations of the mind; or it may be partial, 
and be confined to particular subjects. Inthe 
latter case it is generally termed * monoma- 
nia.’ ” Per Field, J.. 2 Abb. (U. S.) 510. 


MANIA A POTU. A disease induced 
from the intemperate use of spirituous lig- 
uors; the same as delirium tremens. 


MANIFEST. In maritime law. A 
sea-letter; a written document required to be 
earried by merchant vessels, containing an 
account of the cargo, with other particulars, 
for the facility of the customs officers. 

In evidence. That which is clear and re- 
quires no proof; that which is notorious, 


Manifesta probatione non indigent. 7 
Coke, 40. Things manifesi do not require 
proof. 


MANIFESTO. A formal written decla. 
ration, promulgated by a prince, or by the 
executive authority of a state or nation, pro- 
claiming its reasons and motives for declar- 
ing a war, or for any other important inter- 
national action. 


MANIPULUS. Ineanonlaw. A hand- 
kerchief, which the priest always Lad in his 
left hand. Blount. 


MANKIND 


MANKIND. The race or species of hu- 
man beings. In law, females, as well as 
males, may be included under this term. 
Fortesc. 91. 


MANNER. This is a word of large sig- 
nification, but cannot exceed the subject to 
which it belongs. The incident cannot be 
extended beyond its principal. 75 Pa. St. 
39, 54. 

Manner does not necessarily include time. Thus, 
a statutory requirement thut a mining tax shall be 
“enforced in the same manner” as certain annual 
taxes need not imply an annual collection. 8 Nev. 
15, 29. 

Also a thing stolen, in the hand of the 
thief; a corruption of “mainour,” (q. 0.) 


MANNER AND FORM; MODO ET 
FORMA. Formal words introduced at the 
conclusion of a traverse. Their object is to 
put the party whose pleading is traversed not 
only to the proof that the matter of fact de- 
nied is, in its general effect, true as alleged, 
but also’that the manner and form in which 
the fact or facts are set forth are also capable 
of proof. Brown, 


MANNING. A day’s work of a man. 
Cowell. A snnimoning to court. Spelman. 


MANMNIRE. To cite any person tu ap- 
pear in court and stand in judgment there. 
li is different from bannire; for, though both 
of them are citations, this is by the adverse 
party, and that is by the judge. Du Cange. 


MANNOPUS. In old English law. 
Goods taken in the hands of an apprehended 
thief. The same as “mainour,” (q. v.) 


MANNUS. 


MANOR A house, dwelling, seat, or 
residence. 

In English law, the manor was origi- 
nally a tract of land granted out by the 
king to a lord or other great person, in fee. 
It was otherwise called a “barony” or “lord- 
ship,” and appendant to it was the right to 
hold a court, called the “court-baren.” The 
lands comprised in the manor were divided 
into terra tenementales (tenemental lands or 
bocland) and terre domintcates, or demesne 
lands. ‘Tne former were given by the lord 
of the manor to his followers or retainers in 
freehold. The latter were such as he re- 
served for his own use; but of these part 
were held by tenants in copyhold, ¢. ¢., those 
holding by a copy of the record in the lord’s 
court; and part, under the name of the 
“lord’s waste,” served for public roads and 
commons of pasture for the lord and ten- 


A horse. Cowell, 


750 


Sse Eee eS SS ESS ee ee Se ee nr ee 


MANSLAUGHTER 


ants. The tenants, considered in their rela- 
tion to the court-baron and to each other, 
were called “pares curie.” ‘lhe word also 
signified the franchise of having a manor, 
with jurisdiction for a court-baron and the 
right to the rents and. services of copyhold- 
ers. 

In American law. 
held of a proprietor by a fee-farm rent in 
money or in kind, and descending to the old- 
est son of the proprietor, who in New York 
is called a “patroon.” 13 N. Y. 291. 


MANQUELLER. InSaxonlaw. A 
Tourderer. 


MANRENT. In Scotch law. The serv- 
ice of a man or vassal. <A bond of manrent 
was an instrument by which a person, in or- 
der to secure the protection of some powerful 
lord, bound himself to such lord for the per- 
forminece of certain services. 


MAWNSHEH. In old English law. <A habi- 
tation or dwelling, generally with land at- 
tached. Spelman. 

A residence or dwelling-house for the par- 
ish priest; a parsonage or vicarage house. 
Cowell. Still used in Scotch law in this 
sense. 


MANSER. A bastard. Cowell. 


MANSION. <A dwelling-house, 


In old English law. Residence; dwell- 
ing. 


MANSION-HOUSE. in the law of 
burglary, etc., any species of dwelling-house. 
3 Inst. 64. 


MANSLAUGHTER. In criminal law, 
The unlawfulkilling of another without mal- 
ice, cither express or implied; which may be 
either voluntarily, upon a sudden heat, or in- 
voluntarily, but in the commission of sume 
unlawful act. 1 Hale, P. C. 466; 4 BI. 
Comm. 191. 

Manslaughter is the unlawful killing of a 
human creature without malice, either ex- 
press or implied, and without any mixture 
of deliberalion whatever; which may be vol- 
untary, upon a sudden heat of passion, or 
involuntary, in the commission of an unlaw- 
ful act, or a lawful act without due caution 
and cireumspection. Code Ga. 1882, § 4324; 
Pen. Code Cal. § 192. 

The distinction between “manslaughter” and 
“murder” cousists in the following: In ithe for- 
mer, though the act which occasions the death be 
unlawful or likely to be attended with bodily mis- 
chief, yet the malice, either express or implied, 
which is the very essence of murder, is presumed 


A manor is a tract 


MANSLAUGHTER 


‘to be wanting in manslaughter. 1 East, P. C. 218; 
5 Cush. 304. 

It also differs from “murder” in this: that there 
can be no accessaries before the fact, there having 
been no time for premeditation. 1 Hale, P. C. 487; 
1 Russ. Crimes, 485; 1 Bish. Crim. Law, 678. 


MAWNSO, or MANSUM. A mansion or 
- house. Spelman, 


MANSTEALING. A word sometimes 
used synonymously with “kidnapping,” 
(g- 0.) 


MANSUETUS. Tame; as though ac- 
customed tocome tothe hand. 2B]. Comm. 
391. 


MANSUM CAPITALE. The manor- 
house o: lord's court. Paroch. Antig. 150. 


MANTHA. In old records, 
oT mantle. 


MANTHEOFF. InSaxonlaw. A horse- 
stealer. 


MANTICULATE. To pick pockets. 


MAN-TRAPS. Engines to catch tres- 
passers, now unlawful unless sct in a dwell- 
ing-house for defense between sunset and 
sunrise. 24 & 25 Vict. c. 100, § 31. 


MANU BREVI. Lat. With a short 
hand. A term used in the civil law, signify- 
ing shortly; directly; by the shortest course; 
| without circuity. 


MANU FORTI. Withstrong hand. A 
| term used in old writs of trespass. Manw 
j forti et cum multitudine gentium, with 

strong hand and muititude of people. Reg. 
Orig. 183, 


MANU LONGA. With a long hand. 
A term used in the civil law, signifying in- 
directly or circuitously. Calvin. 


MANU OPERA. Cattle or implements 
of husbandry; also stolen goods taken from 
a thief caught in the fact. Cowell. 


MANUAL. Verformed by the hand; used 
or employed by the hand; held in the hand. 
Thus, a distress cannot be made of tools in 
the “manual occupation” of the debtor. 


MANUAL GIFT. The manual gift, 
that is, the giving of corporeal movable ef- 
fects, accompanied by a real delivery, is not 
subject toany formality. Civil Code La. art. 
1539. 


MANUALIA BENEFICIA. Thedally 
distributions of meat and drink to the canons 
and other members of cathedral churches for 
their present subsistence, Cowell. 


: 


A long robe 


751 


MANUMISSION 


MANUALIS OBEDIENTIA. Sworn 
obedience or submission upon oath. Cowell. 


MANUCAPTIO. In old English prac. 
tice A writ which lay for a man taken on 
suspicion of felony, and the like, who could 
no. be admitted to.bail by the sheriff, or 
others haying power to let te mainprise. 
Fitzh, Nat. Brey. 249. 


MAWNUCAPTORS. The same as main- 
pernors. 
MANUFACTORY. A building, the 


main or principal design or use of which is to 
be aplace for producing articles as products 
of labor; not merely a place where something 
may be made by hand or machinery, but 
what in common understanding is known as 
a “factory.” 57 Pa. St. 82, 


MANUFACTURE, 0 The primary 
meaning of this word is “making with the 
hand,” but this definition is too narrow for 
its present use. Its meaning has expanded 
ag workmanship and art have advanced, so 
that now nearly all artificial products of hu- 
man industry, nearly all such materials as 
have acquired changed conditions or new and 
specific combinations, whether from the di- 
rect action of the human hand, from chem- 
ical processes deyised and directed by human 
skill, or by the employment of machinery, 
are now commonly designated as “manufact- 
ured.” 57 Md. 526. See, also, 5 Blatchf. 
215; 59 Mich. 163, 26 N. W. Rep. 311. 


MANUFACTURE, n. In patent law. 
Any useiul product made directly by buman 
labor, or by the aid of machinery directed 
and controlled by human power, and either 
from raw materials, or from materials worked 
up into a new form. Also the process by 
which such products are mude or fashioned. 


MANUFACTURER. One who is en- 
gaged in the business of working raw ma- 
terials into wares suitable for use. 63 How. 
Pr. 458. See MANUFACTURE, 


MANUFACTURING CORPORA: 
TION, <A corporation engaged in the pro- 
duction of some article, thing, or object, by 
skill or labor, out of raw material, or from 
matter which has already been subjected to 
artificial forces, or to which something has 
been added to change its natural condition. 
99 N. Y¥. 181, 1 N. E. Rep. 669. The 
term does not include a mining corporation. 
106 Mass. 135. 


MANUMISSION. The act of liberating 
| a slave from bondage and giving him free 


MANUMITTERE, ETC. 


dom. In a wider sense, releasing or deliv- 
ering one person from the power or control 
of another. 


Manumittere idem est quod extra 
manum vel potestatem ponere. Co. Litt. 
137. To manumit is thesame as to place be- 
yond hand and power. 


MANUNG, or MONUNG. In old En- 
glish law. The district within the jurisdic- 


tion of a reeve, apparently so called from his | 


power to exercise therein one of his chief 
functions, viz., to exact (amanian) all fines. 


MANUPES. A foot of full and legai 
mesure. 


MANURABLE. In old English law. 
Capable of being had or held in hand; capa- 
ble of manual occupation; capable of being 
cultivated; capable of being touched; tangi- 
ble; corporeal. Hale, Anal. § 24. 


MANURE. Inold Englishlaw. To oc- 
cupy; to use or cultivate; to have in man- 
ual occupation; to bestow manual labor up- 
on. Cowell. 


MANUS. Lat. A hand. 

In the civil law, this word signified pow- 
er, control, authority, the right of physical 
coercion, and was often used as synonymous 
with “potestas.” 

In old English law, it signified an oath 
or the person taking an oath; a compurgator. 


MANUS MORTUA. Adead hand; 
morimain, Spelman. 


MANUSCRIPT. A writing; a paper 
written with the hand; a writing that has 
not been printed. 


MANUTENENTIA. The old writ of 
maintenance. Reg. Orig. 182. 


MANWORTH. In old English law, 
The price or value of a man’s life or head. 
Cowell. 


MANY. This term denotes a multitude, 
not merely a number greater than that de- 
noted by the word “few.” (Ala.) 6 South. 
Rep. 282. 


MANZIE. InoldScotch law. Mayhem; 
mutilation of the body of a person. Skene. 


MAP. A representation of the earth’s 
surface, or of some portion of it, showing the 
relative position of the parts represented, 
usually on a flut surface. Webster. “A map 
is but a transcript of the region which it por- 
trays, narrowed in compass go as to facilitate 


752 


MARCHETA 


an understanding of the original.” 3 Minn, 


103, (Gil. 55.) 


MARA. Inold records. A mereor moor; 
a lake, pool, or pond; a bog or marsh that 
caunot be drained. Cowell; Blount; Spel- 
man. 


MARAUDER. “A marauder is defined 
in the law to be ‘one who, while employed 
in the army as a soldier, commits larceny ot 
robbery in the neighborhoud of the camp, or 
wiile wandering away from the army.’ But 
in the modern and metaphorical sense of the 
word, as now sometimes used in common 
speech, it seems to be applied to a class of 
persons who are not a part of any regular 
army, and are not answerable to any military 
discipline, but whoare mere lawless banditti, 
engaged in plundering, robbery, murder, and 
all conceivable crimes.” 37 Mo. 328. 


MARC-BANCO, The name of a piece 
of money coined at Hamburg. Its value is 
thirty-five cents. 


MARCA. A mark; a eoin of tho value of 
13s. 4d. Spelman. 


MARCATUS. Tho rent of a mark by the 
year anciently reserved in leases, ete. 


MARCH. InScotchlaw. A boundary 
line or border. Bell, The word is also used 
in composition; a8 march-dike, march-stone, 


MARCHANDISES AVARIEES. In 
French mercantile law. Damaged goods. 


MARCHERS. In old English law. 
Noblemen who lived on the marshes of Wales 
or Scotland, and who, aceording to Camden, 
had their private laws, as if they had been 
petty kings; which were abolished by the 
statute 27 Hen. VIII. c. 26. Called also 
“lords marchers.” Cowell. 


MARCHES. An old English term for 
boundaries or frontiers, particularly the 
boundaries and limits between England and 
Wales, or between England and Seotland, or 
the borders of the dominions of the crown, or 
the boundaries of properties in Scotland, 
Mozley & Whitley. 


MARCHES, COURT OF. An abolished 
tribunal in Wales, where pleas of debt or 
damages, not above the value of £50, were 
tried and determined. Cro. Car. 884. 


MARCHETA. In old Scotch law. a 
custom for tiie lord of a fee to He the first 
night with the bride of his tenant. Abol- 
ished by Malcolm III. Spelman; 2 BL, 
Comm. 83. 


MAKCHETA 


758 


MARINE iNSURANCE 


A fine paid by the tenant forthe remission | marinartus capitaneus was the admiral or 
of such right, oriyinally a mark or half a | warden of the ports. 


inark of silver. Spelman. 

In old English law. A fine paid for 
leave to marry, or to bestow a daughter in 
marriage. Cowell. 


MARCHIONESS. A dignity ina woman 
answerable to that of marquis in a man, con- | 
ferred either by creation or by marriage with | 
amarquis. Wharton. 


MARE. Lat. 


MARE CLAUSUM. The sea closed; 
that is, not open or free. The title of Sel- 
den’s great work, intended as an answer to 
the Mare Liberuim of Grotius; in which he 
undeztakes to prove the sea to be capable 
of private dominion. 1 Kent, Comm, 27. 


MARE LIBERUM. The sea free, The 
title of a work written by Grotius against the 
Portuguese claim to an exclusive trade to the 
Indies, through the South Atlantic and In-« 
dian oceans; showing that the sea was not 
capable of private dominion. 1 Kent, 
Corm. 27. 


MARESCALLUS. In old English law. 
A marshal; a master of tke stables; an offi- 
cer of the exchequer; a military olficer of 
high rank, having powers aud duties similar 
to these of a constable. Du Cange. Sea 
MaisHax. 


MARESCHAL. L. Fr. Marshal; a high 
ofticer of the royal househuid. Britt. fol. 18. 


MARETVUM. Marshy ground oaver- 
flowed bythoscaorgreatrivers. Co. Litt. 5. 


‘The sea. 


MARGIN. Asumof menoy, or its equly- 
alent, placed in the hands of a stockbroker 
by the principal or person on whosa account 
the purchase is to be made, as a security to 
the former against losses to which be may be 
exposed by a subsequent depression in the 
markei value of ths stock. 49 Barb. 468. 


MARGINAL NOTE. In Scoteh law. 
A note inserted on the margin of a deed, 
embodying either some clause which was 
omitted in transcribing or some change in 
the agreement of the parties. Bell, 

An abstract of a reported case, a summary 
of the facts, or brief statement of the prin- 
ciple decided, which is prefixed to the report 
of the case, sometimes in the margin, is also 
spoken of by this name. 


MARINARIUS. An ancient word which 
signified a mariner or seaman. In England, 
AM. DICT. LAW-—48 


| of the marines. 


MARINE. Naval; relating or pertaining 
to the sea; transacted at sea; doing duty or 
service on the sea, 

This is also a general name for the navy of 
a kingdom or state; as also the whole econo- 
ny of naval affaira, ar whatever respects the 
building, rigging, arming, equipping, navi- 
gating, and fighting ships. It comprehends 
also the government of naval armaments, 
and the state of all the persons employed 
therein, whether civil or military. Also one 
Wharton. 


MARINE CONTRACT, One relating 
to maritime affairs, shipping, navigation, 
marines insurance, affreightment, maritime 
loans, or other business to be done upon the 
sea or in connection with navigation, 


MARINE CORPS. A body of soldiers 
enlisted and equipped for service on board 
vessels of war; also the naval forces of the 
nation. 


MARINE COURT IN THE CITY OF 
WEW YORK. A local court of New York 
having original jurisdiction of civil causes, 
where the action is for personal injuries or 
defamation, ani of other civil actions where 
the damages claimed do not exceed $2,000. 
It ia uw court of record. It was originally 
created as a tribunal for the settlement of 
causes between seamen. 


MARINE INSURANCE. A contract 
whereby, for a consideration stipulated to be 
paid by one interested in a ship, freight, or 
cargo, subject to the risks of marine naviga- 
tion, another undertakes to indemnify him 
against some or all of those risks during a 
certain period or voyage. 1 Phil. Ins. 1, 

A contract whereby one party, for a stipu- 
lated premium, undertakes to indemnify the 
other against certain perils or gea-risks to 
which his ship, freight, and curgo, or some 
of them, may be exposed during a certain 
voyage, or a fixed period of iime, 8 Kent, 
Comm. 253. 

Marine insurance is an insurance against 
Tisks conneeted with navigation, to which a 
ship, cargo, freightage, profits, or other in- 
surabie interest in movable property may be 
exposed during a certain voyage or a fixed 
period of time. Civil Code Cal. § 2655. 

A contract of marine insurance is one by 
which a person or corporation, for a stipn- 
lated premium, insures another against losses 


. 


MARINE INTEREST 


occurring by the casnalties of the sea. Code 


Ga. 1882, § 2824, 


MARINE INTEREST. Interest, al- 
lowed to be stipulated for at an extraordinary 
rate, for the use and risk of money loaned on 
respondentia and bottomry bonds. 


MARINE LEAGUE. A measure of 
distance commonly employed at sea, being 
equal to one-twentieth part of a degree of 
latitude. 


MARINE RISK. The perils of the sea; 
the perils necessarily incident te navigation. 


MARINE SOCIETY. In English law. 
A. charitable institution for the purpose of 
apprenticing boys to the naval service, etc., 
incorporated by 12 Geo. IIL. c. 67. 


MARINER, <A seaman or sailor; one 
engaged in navigating yessels upon the sea. 


MARINES. A body of infantry soldiers, 
trained to serye on buard of vessels of war 
when in commission and to fight in naval en- 
gagements. 


Maris et fominz conjunctio est de 
jure nature. 7 Coke, 18. The connee- 
tion of male and female is by the law of nat- 
ure. 


MARISCHAL, An officer in Scotland, 
who, with the lord high constable, possessed 
a Supreme itinerant jurisdiction in all crimes 
committed within a certain space of the 
court, wherever it might happen to be. 
Wharton. 


MARISCUS. A marshy or fenny ground. 
Co, Litt. 5a. 


MARITAGIO AMISSO FER ODE- 
FALTAM. An obsolete writ for the tenant 
in frank-marriage to recover lands, etc., of 
which he was deforeed. 


MARITAGIUM. The portion which 
is given with a daughtor in marriage. Also 
the power which the lord or guardian in 
ehivalry liad of disposing of his infant ward 
in matrimony. 


Maritagium est aut liberum aut ser- 
vitio obligatum; liberum maritagium 


dicitur ubi donator vult quod terra sic | 


daia quieia sit et libera ab omni seécu- 
lari gervitio. Co. Litt. 21. A marriage 
portion is either fres or bound to service; it 
is called “frank-marriage” when the giver 
wills that land thus given be exempt from all 
secular service. 


754 


MARITIME JURISDICTION 


MARITAGIUM HABERE, To have 
the free disposal of an heiress in marriage. 


MARITAL. Relating to, or connected 
with, the status of marriage; pertaining toa 
husband; incident to a husband. 


MARITAL COERCION, Coercion of 
the wife by the husband. 


MARITAL PORTION. In Louisiana. 
The name given to that part of a deceased 
husband’s estate to which the widow is en- 
titled. Civil Code La. art. 55; 3 Mart. (N, 
Sepidle 


MARITAL RIGHTS. The rights of a 
husband. The expression is chiefly used to 
denote the right of « husband to property 
which his wife was entitled to during tha 
continuance of the marriage. 


MARITIMA ANGLIZ. In old En- 
glish law. The emolument or revenue com- 
ing to the king from the sea, whieh the sher- 
iffs anciently collected, but which was after. 
wards granted to the admiral. Spelman. 


MARITIMA INCREMENTA. In old 
English law. Marine increases. Lands 
gained from the gea. Hale, de Jure Mar. pt. 
1, ¢.4, 


MARITIME. Pertaining to the sea or 
ocean or the navigation thereof; or to com- 
merce conducted by navigation of the sea or 
(in America) of the great lakes and rivers. 

It is nearly equivalent to “marine” in 
many connections and uses; in others, the 
two words are used a8 quite distinct. 


MARITIME CAUSS. A cause of action 
originating on the high seas, or growing out 
of a maritime contract. 1 Kent, Comm. 
367, eb seq. 


MARITIME CONTRACT. A contract 
whose subject-matter has relation to the nayi- 
gation of the seas or to trade or commerce to 
be conducted by navigation or to be done 
upon the sea or in ports. Over such con- 
tracts the admiralty has concurrent jurisdic 
tion with the common-law courts, 


MARITIME COURT. A court exer 
| cising jurisdiction in maritime causes; one 
which possesses the powers and jurisdiction 
| of a court of admiralty, 


| MARITIME INTEREST. An expres 
sion equivalent to marine interest, (q. .) 


MARITIME JURISDICTION. Juris 
diction in maritime causes; such jurisdiction 


MARITIME LAW 


as belongs to a court of admiralty on the in- 
stance side. 


MARITIME LAW. That system of law 
which particularly relates to commerce and 
navigation, to business transacted at sea or 
relating to navigation, to ships and shipping, 
to seamen, to the transportation of persons 
and property by sea, and to marine affairs 
generally. 

The law relating to harbors, ships, and 
seamen. An important branch of the com- 
merciallaw of maritime nations; divided into 
a variety of departments, such as those about 


758 


harbors, property of ships, duties and rights | 


of masters and seamen, contracts of affreight- 
ment, average, salvage, elc. Wharton. 


MARITIME LIEN. A lien arising out 
of damage done by a ship in the course of 
navigation, as by collision, which attaches 
to the vessel and freight, and is to be enforced 
by an action im rem in the admiralty courts. 


MARITIME LOAN. A contract or 
agreement by which one, who is the lender, 
lends to another, who is the borrower, a cer- 
tain sum of money, upon condition that if 
the thing upon which the loan has been made 
should be lost by any peril of the sea, or vis 
major, the lender shall not be repaid unless 
what remains shall be equal to the sum bor- 
rowed; and if the thing arrive in safety, or 
in case it shall not have been injured but by 
its own defects or the fault of the master or 
mariners, the borrower shall be bound to re 
furn the sum borrowed, together with a cer- 
tain sum agreed upon ag the price of the haz- 
ard incurred. Emerig. Mar. Loans, c. 1, 
Cher 


MARITIME PROFIT, A term used 
by French writers to signify any profit de- 
rived from a maritime loan. 


MARITIME SERVICE. In admiralty 
law. A service rendered upon the high seas 
or a navigable river, and which has some re- 
lation to commerce or navigation,—some 
connection with a vessel employed in trade, 
with her equipment, her preservation, or the 
preservation of her cargoorcrew. 4 Woods, 
267, 16 Fed. Rep. 924. 


MARITIME STATE, in English law, 


a sot — 


consists of the officers and mariners of the | 


British navy, who are governed by express 
and permanent laws, or the articles of the 
navy, established by act of parliament. 


MARITIME TORT. A tort committed 
apon the high seas, or upon a navigable river 


MARKET 


or other navigable water, and hence falling 
within the jurisdiction of a court of admiral- 
ty. The term is never applied to a tort com- 
mitted upon land, though relating to mari- 
time matters. See 3 Wall. 33; 17 Fed. Rep. 


587. 
MARITUS. Lat. A husband; a mar- 
tied man. Calvin. 


MARK. I. A character, usually in the 
form of a cross, made as a substitute for bis 
signature by a person who cannot write, in 
executing a conveyance or other legal docu- 
ment. It is commonly made as follows: <A 
third person writes the name of the marks- 
man, leaving a blank space between the 
Christian name and surname; in this space 
the latter traces the mark, or crossed lines, 
and above the mark is written “his,” (or 
“her,”) and below it, “mark.” 

2. The sign, writing, or ticket put upon 
manufactured goods to distinguish them from 
others, appearing thus in the compound, 
“trade-mark.” 

3. A token, evidence, or proof; as in the 
phrase “a mark of fraud.” 

4. A weight used in several parts of Eu- 
rope, and for several commodities, especially 
gold and silver. When gold and silver are 
sold by the mark, it is divided into twenty- 
four carats. 

5. A money of accounts in England, and 
in some other countries acoin, ‘The English 
mark is two-thirds of a pound sterling, or 
13s. 4d.; and the Scotch mark is of equal 
value in Scotch money of account. Ene. 
Amer, 


6. In early Teutonic and English 
law. A species of village community, being 
the lowest unit in the political system; one of 
the forms of the gens or clan, variously known 
as the “mark,” “gemeinde,” “commune,” 
or “parish,” Also the land held in common 
by such acommunity. The union of several 
such village communities and their marks, 
or common lands, forms the next higher po- 
litical union, the hundred. Freem. Compar. 
Polities, 116, 117. 

7. The word is sometimes used as another 
form of “marque,” a license of reprisals, 


MARKEPENNY. A penny anciently 
paid at the town of Maldon by those who had 
gutters Jaid or made out of their houses into 
the streets. Wharton. 


MARKET. A public time and appointed 
place of buying and selling; also purchase 
and sale. It differs from the forum, or mar- 
ket of antiquity, which was a public market 


MARKET 


place on one aide only, or during one part of 
the day only, the other sides being occupied 
by temples, theaters, courts of justice, and 
other publie buildings. Wharton. 

The liberty, privilege, or franchise by 
which a town hoklsa market, which can only 
be by royal grant or immemorial usage. 

By the term “market” is also understood 
the demand there is for any particular article; 
as, “the cotton market in Europe is dull.” 


MARKET GELD. The tollof a market. 


MARKET OVERT. In English law. 
An open and public market. Tha market- 
place or spot of ground set apart by custom 
for the sale of particular goods is, in the 
country, the only market overt; but in Lon- 
don every shop in which goods are exposed 
publicly to sale is market overt, for such 
things only as the owner professes to trade 
in. Godb. 131; 5 Coke, 83; 2 Bl. Comm. 449, 


MARKET PRICE means, when price 
atthe place of exportation is in view, the 
price at which articles are sold and purchased, 
clear of every charge but such as is laid upon 
il at the time of sale. 2 Wash. C. ©, 493. 


MARKET TOWNS. Those towns 
which ure entitled to hold markets. 1 Steph. 
Comm. (7th Ed.) 180. 


MARKET VALUE signifies a price es- 
tablished by public saies, or sales in the way 
of ordizary business. 99 Mass. $45. 


MARKET ZELD, (properly market 
geld.) In old records. The tollofa market. 
Cowell, 

MARKETABLE. Such things as may 


be sold in the market; those for which a 
buyer may be found. 


MARKETABLE TITLE. A “market- 
able title” to land is such a title as a courtof 
equity, when asked to decree specific per- 
formance of the contract of sale, will compel 
the vendee to accept as suflicient. It is said 
to be not merely a defensible title, but a title 
which is free from plausible or reasonable ob- 
jections. 


MARKSMAN. In practice and convey- 
ancing. One who makes his mark; a person 
who cannot write, and only makes his mark 
in executing instruments. Arch. N, Pr. 13; 
2 Chit. 92. 


MARLBRIDGH, STATUTE OF. An 
English statute enacted in 1267 (52 Hen. 
{II.) at Marlbridge, (now called “Marlbor- 
vuch,”} where parliament was then sitting. 


756 


MARRIAGE 


It related to land tenures, and to procedure, 
and to unlawful and excessive distresses. 


MARQUE AND REPRISAL, LET- 
TERS OF, These words, “marque” and 
“reprisal,” are frequently used as synony- 
mous, but, taken in their strict etymological 
sense, the latter signifies a “taking in re- 
turn;” the former, the passing the frontiers 
(marches) in order to such taking, Letters 
of marque and reprisal are grantable, by the 
law of nations, whenever the subjects of one 
state are oppressed and injured by those of 
another, and justice is denied by that state 
to which the oppressor belongs; and the par- 
ty to whom these letters aro granted may 
then seize the bodies or the goods of the sub- 
jects of the state to which the offender be- 
longs, until satisfaction be made, wherever 
they happen to be found. Reprisals are to 
be granted only in case of a clear and open 
denial of justice. Atthe present day, in con. 
sequence partly of treaties and partly of the 
practice of nations, the making of reprisals 
is confined to the seizure of commercial prop- 
erty on the high seas by public cruisers, or 
by private cruisers specially authorized there. 
to. Brown. 


MARQUIS, or MARQUESS. In En- 
glish law. One of the second order of no- 
bility; next in order to a duke. 


MARQUISATE, The seigniory of a mar- 
quis. 


MARRIAGE. Marriage, as distin. 
guished from the agreement to marry and 
from the act of becoming married, is the civil 
status of one man and one woman united in 
law for life, for the discharge to each other 
and the community of the duties legally in- 
cuimbent on those whose association is found- 
ed on the distinction of sox. 1 Bish. Mar. & 
Div. § 3. 

A contract, according to the form pre- 
scribed by law, by which a man and woman, 
capable of entering into such contract, mutu- 
ally engage wilh each other to live their 
whole lives together in the state of union 
which ought to exist between a husband and 
wife. Shelf. Mar, & Div. 1. 

Marriage is a personal relation arising out ofa 
civil contract, to which the consent of parties ca- 
pable of making it is necessary. Consent alone 
will not constitute marriage; it must be followed 
by a solemnization, or by a mutual assumption of 
marital rights, duties, or obligations. Civil Code 
Cal. §.55. 

Marriage is the union of one man and one wo- 
man, “so long as they both shall live,” to the ex 
clusion of all others, by an obligation which, dur- 
ing that time, the parties cannot of their own voli- 


MARRIAGE 


enly by authority of the state. 19 Ind, 53. 


The word also signifies the act, ceremony, 
or formal proceeding by which persons take 
each other for husband and wife. 

In old English law, marriage is used in 
the sense of “maritagium,” (q. v.,) or the 
feudal right enjoyed by the lord or guardian 
in chivalry of disposing of his ward in mar- 
riage. 

MARRIAGE ARTICLES, Articles of 
agreement between parties contemplating 
marriage, intended as preliminary toa formal 
marriage settlement, to be drawn after mar- 
riage. Ath. Mar. Sett. 92. 


MARRIAGE BROKAGE. The act by 


757 


which a third person, for « consideration, | 
| palace, to hear causes between members of 


negotiates a marriage between a man and 
woman. The money paid for such services 
is also known by this name. 


MARRIAGE CEREMONY. Theform, 
raligioue or civil, for the solemnization of a 
marriage. 


MARRIAGE CONSIDERATION. 
Tbe consideration furnished by an intended 
marriage of two persons. It is the highest 
consideravion. Known to the Jaw. 


MARRIAGE LICENSE. A license or 
permission granted by public authority to 
persons who intend to intermarry. By stat- 
ute, in some jurisdictions, it is made an es- 
sential prereguisite to the lawful solemniza- 
tion cf tha marriage. 


MABRIAGE-NOTICE BOOK. A 
book kept, in England, by the registrar, in 
which applications for and issue of registrar’s 
licenses to marry are recorded. 


MARRIAGE PORTION. Dowry;a 
ura of money or other property which is 
given to cr settled on awoman on her mar- 
Tiage. 

MARRIAGE PROMISE.  Betrothal; 
engagement to intermarry with another. 


MARRIAGE SETTLEMENT. A writ- 
ten agreement in the nature of a conveyance, 
called a “settlement,” which is made in con- 
templation of a proposed marriage and in 
consideration thereof, either by the parties 
about to intermarry, or one of them, or by a 
parent or relation on their behalf, by which 
the title to certain property is settled, @. ¢., 
fixed or limited to a prescribed course of 
succession; the object being, usually, to pro- 
vide for the wife and children. Thus, the 


MARSHALING ASSETS 


tion and act dissolve, but which can be dissolved ) estate might be limited to the husband and 


issue, or to the wife and issue, or to husband 
and wife for their joint lives, remainder to 
the survivor for life, remainder over to the 
issue, or otherwise. Such settlements may 
also be made after marriage, in which case 
they are called “post-nuptial.” 


MARRIED WOMAN. A woman who 
has a husband living and not divorced; a 
Jeme covert. 


MARSHAL. InoldEnglishlaw. The 
title borne by several oflicers of state and of 
the law, of whom the most important were 
the following: (1) The earl-marshal, who 
presided in the court of chivalry; (2) the mar- 
shal of the king’s house, or knight-marshal, 
whose special authority was in the king’s 


the household, and punish faults committed 
within the verge; (3) the marshal of the 
king’s bench prison, who had the custody of 
that jail; (4) the marshal of the exchequer, 
who had the enstody of the king’s debtors; 
(5) the marshal of the judge of assize, whose 
duty was toswear in the grand jury. 

In American law. An oilicer pertaining 
to the organization of the federal judicial sys- 
tem, whose duties are similar to those of a 
sheriff. He is to execute the process of the 
United States courts within the distriet for 


| which he is appointed, ete. 


Also, in someof the slates, this is the name 
of an officer of police, in a city or borough, 
having powers and duties corresponding gen- 
erally to those of a constable or sheriff. 


MARSHAL OF THE QUEEN’S 
BENCH. An officer who had the custody 
of the queen’s bench prison. The St, 5 &6 
Vict. c. 22, abolished this office, and substi- 
tuted an oflicer called “keeper of the queen's 
prison,” 


MARSHALING ASSETS. In equity. 
The arranging or ranking of assets in the dua 
order of administration. Such an arrange- 
ment of the different funds under adminis- 
tration as shall enable all the parties having 
equities thereon to receive their due propor- 
tions, notwithstanding any intervening in- 
terests, liens, or other claims of particular 
persons to prior satisfaction out of a portion 
of these funds, The arrangement or ranking 
of assets in a certain order towards the pay- 
ment of debts. 1 Story, Eq. Jur. § 558; 4 
Kent, Comm, 421. 

The arrangement of assets or claims so as 
to secure the proper application of the assets 
to the various claims; especially when there 


MARSHALING LIENS 7 


are two classes of asscts, and some creditors 
ean enforce their claims against both, and 
others against only one, and thecreditors of the 
former class are conipelled to exhaust the as- 
sets against which they alone have a claim 
before having recourse to other assets, thus 
providing for the setilement of as many claims 
as possible. Pub. St. Mass. p. 1292. 


MARSHALING LIENS. The ranking 
or ordering of several estates or parcels of 
land, for the satisfaction of a judgment or 
mortgage to which they are all liable, though 
successively conveyed away by the debtor. 
The rule is that, where lands subject to the 
lien of a judgment or mortgage have been 
sold or incumbered by the owner at different 
times to different purchasers, the various 
tracts are liable to the satisfaction of the lien 
in the inverse order of their alienation or in- 
cumbrance, the land last sold being first 
chargeable. 1 Black, Judgm. § 440. 


MARSHALLING SECURITIES. An 
equitable practice, which consists in so rank- 
ing or arranging classes of creditors, with 
respect to the assets of the common debtor, 
as to provide for satisfaction of the greatest 
number of claims. The process is this: 
Where one class of creditors have liens or se- 
curities on éwo funds, while another class of 
creditors can resort to only one of those funds, 
equity will compel the doubly-secured credit- 
ors to first exhaust that fund which will leave 
the single security of the other creditors in- 


tact. See 1 Story, Eq. Jur. § 630. 
MARSHALSHA. In English law. A 
prison belonging to the King’s bench. It 


has now been consolidated with others, un- 
der the name of the “Queen’s Prison.” 


MARSHALSEA, COURT OF. The 
court of the Marshalsea had jurisdiction in 
actions of debt or torts, the cause of which 
arose within the verge of the royal court. It 
was abolished by St. 12 & 18 Vict. c. 101, 
4 Steph. Comm. 317, note d. 


MART, A place of public traflic or sale, 


MARTE SUO DECURRERE. Lat. 
To run by its own force. A term applied in 
the civil law to a suif when it ran its course 
to the end without any impediment. Calvin. 


MARTIAL LAW. A system of law, ob- 
taining only in time of actual war and srow- 
ing out of the exigencies thereof, arbitrary 
in its character, and depending only on the 
will of the commander of an army, which is 
established and administered in a place or 


5 


8 MASSA 


district of hostile territory held in belligerent 
possession, or, sometimes, in places occupied 
or pervaded by insurgents or mobs, and whieh 
suspends all existing civil laws, as well ag 
the civil authority and the ordinary adminis- 
tration of justice, See, also, MiLITARY 
Law. 

“Martial law, which Is built upon no settled 
principles, but is entirely arbitrary in its decisions, 
is in truth and reality no law, but something in- 
dulged rather than allowed asa law. The neces- 
sity of order and discipline in an army is the only 
thing which can give it countenance, and there 
fore it ought not to be permitted in time of peaca, 
when the king’s courts are open for ali persons to 
receive justice according to the laws of the land,” 
1 BI. Comm. 418. 

Martial law is neither more nor less than the 
will of the general who commands the army. It 
overrides and suppresses all existing civil laws, 
civil officers, and civil authorities, by the arbitrary 
exercise of military power; and every citizen or 
subject—in other words, the entire population of 
the country, within the confines of its power—is 
subjected to the mere will or caprice of the com- 
mander. He holds the lives, liberty, and property 
of allin the palm of his hand. Martial law is reg- 
ulated by no known or established system or coda 
of laws, as it is over and above all of them The 
coulmander is the legislator, judge, and execu- 
tioner. 5 Blatchf. 321. 

Martial law is not the same thing as milt 
tary law. ‘The latter applies only to persons 
connected with the military forees of the 
country or to affairs connected with the army 
or with war, but is permanent in its nature, 
specific in its rules, and a recognized part of 
the law of the land. The former applies, 
when in existence, to all persons alike wlio 
are Within the territory covered, but is tran- 
sient in its nature, existing only in time of 
war or insurrection, is not specific or always 
the same, as if depends on the will and dis- 
eretion of the military commander, and is no 
part of the law of the land. 


MARTINMAS. The feast of St. Martin 
of Tours, on the llth of November; some. 
times corrupted into “Martiluaas” or “Mar- 
tlemas.” It is the third of the four cross 
quarter-days of the year. Wharton. 


MARUS. In old Scotch law. <A maire: 
an officer or executor of summons. Other- 
wise called “preco regis.” Skene. 


MASAGIUM. A messuage. 
MASCULINE, Of the male sex, 


MASSA. In the civil law. A mass; an 
unwrought substance, such as gold or silver, 
before it is wrought into cups or other ar. 
ticles. Dig. 47, 2, 52, 14; Fleta, lib. 2, ¢. 60, 
§§ 17, 22. 


a 


MAST 


MAST. To fatten with mast, (acorns, 
tic.) 1 Leon. 186. 


MAST-SELLING. In old English law. 
The practice of selling the goods of dead sea- 
men atthe mast. Held void. 7 Mod. 141. 


MASTER. One having authority; one 
who rules, directs, Instructs, or superintends; 
a head or chief; an instructor; an employer. 


Applied to several judicial officers. See 
tnjra. 
MASTER AND SERVANT. The re- 


lation of master and servant exists where one 
person, for pay or other valuable considera- 
tion, enters into the service of another and 
devotes to him his personal labor for an 
agreed period, Sweet. 


MASTER AT COMMON LAW. The 
title of officers of the English superior courts 
of common law appointed to record the pro- 
ceedings of the court to which they belong; 
to superintend the issue of writs and the 
formal proceedings in an action; to receive 
and account for the fees charged on legal pro- 
teedings, and moneys paidintocourt. There 
are five toeach court. They are appointed 
under St. 7 Wm. [V. and 1 Vict. c. 30, 
passed in 1837. Mozley & Whitley, 


MASTER IN CHANCHIRY. An of- 
ficer of a court of chancery who acts as an 
assistant tothe judge or chancellor. His of- 
fice isto inquire into such matters as may be 
referred to him by the court, examine causes, 
take testimony, take accounts, compute dam- 
ages, etc., reporting his findings to the court 
in such shape that a decree may be made; 
also to take ov ths and affidavits and acknowl- 
edgements of deeds. In modern practice, 
many of the functions of a master are per- 
formed by clerks, commissioners, auditors, 
and referees, and in some jurisdictions the 
office has been superseded. 


MASTER IW LUNACY. In English 
law. The masters in lunacy are judicial offi- 
cera appointed by the lord chancellor for the 
purpose of conducting inquiries into the state 
of mind of persons alleged to be tunatics. 
Such inquiries usually take place before a 
jury. 2 Steph. Comm. 511-5’. 


MASTER OF A SHIP. In maritime 
law. The commander of a merchant vessel, 
who has the chief charge of her government 
and navigation and the command of the crew, 
ag weil as the general care and control of the 
vessel and cargo, as the representative and 


753 


MASTERS, ETC. 


confidential agent of the owner. 
monly called the “captain.” 


He is com- 


MASTER OF THE CROWN OFFICE, 
The gueen’s coroner and attorney in the 
criminal department of the court of queen's 
bench, who prosecutes at the relation of some 
private person or common informer, the 
crown being the nominal prosecutor. St, 6 
& 7 Viet. c. 20; Wharton. 


MASTER OF THE FACULTIES. in 
English law. Am oflicer under the arch- 
bishop, who grants licensea and dispensa- 
tions, ete. 


MASTER OF THE HORSE. In En- 
glish law. The third great officer of the roy- 
al household, being next to the lord steward 
and lord chamberlain. He has the privilege 
of making use of any horses, footmen, or 
pages belonging to the royal stables. 


MASTER OF THE MINT. In English 
law. An officer who receives bullion for 
coinage, and pays for it, and superintends 
everything belonging to the mint. He is 
usually called the “warden of the mint.” It 
is provided by St.33 Vict. c. 10,3 14, that the 
chancellor of the exchequer for the time be 
ing shall be the master of the mint. 


MASTER OF THE ORDNANCE. 
In English law. A great officer, to whose 
care all the royal ordnance and artillery were 
committed. 


MASTER OF THE ROLLS. In En- 
glish law. An assistant judge of the court 
of chancery, who holds aseparate court rank- 
ing next to that of the jiord chancellor, and 
has the keeping of the rolls and grants which 
pass the great seal, and the records of the 
chaneery. He was originally appointed only 
for the superintendence of the writs and ree- 
ords appertaining to the common-law depart- 
ment of the court, and is still properly the 
chief of the masters in chancery. 3 Steph. 
Comm. 417. 

Under the act constituting the supreme 
cours of judicature, the master of the rolls 
becomes a judge of the high court of justice 
and ex officto a member of the court of appeal. 
The same act, however, provides for the ab- 
olition of this office, under certain conditions, 
when the next vacancy occurs. Sea 36 & 37 
Vict. c. 66, §§ 5, 31, 32. 


MASTERS OF THE SUPREME 
COURT. In English law. Officials deriv- 
ing their title from Jud. (Officers’) Act 1879, 
aud being, or filling the places of, the sixteen 


MASTER OF THE TEMPLE 760 MATRICULATEH 


masters of the common-law courts, the MATERNA MATERNIS. Lat. A 

queen’s coroner and attorney, the master of | maxim of the French law, signifying that 

the crown oflice, the two record and writ | property of a decedent acquired by him 

clerks, and the three associates. Wharton. | through bis mother deseends to the relations 
on the mother’s side. 


MATERNAL. That which belongs to, 
or comes from, the mother; as maternal qu- 
thority, maternal relation, maternal estate, 
maternal line, 


MASTER OF THE TEMPLE. The 
MATERNAL PROPERTY. That 


ehief ecclesiastical functionary of the Temple 
Church, ¢. 


MASTER’S REPORT. The formal re- 
port or statement made by a master in chan- 
eery of his decision on any question referred 
to him, or of any facts or action he has been 
directed to ascertain or take. 


which comes from the mother of the party, 
and other ascendants of tle maternal stock. 
Dom. Liv. Prél. t. 3,8. 2, no. 12. 
MASUBA. In old records. A decayed 
house; a wall; the ruins of a building; a cer- 
tain quantity of land, about four oxgangs, 


MATERNITY. The character, relation, 
state, or condition of a mother. 


MATERTERA. Lat. In the civil law. 
A maternal aunt; a mother’ssister. Inst. 3, 
6,1; Bratt, fol. 68b. 


MATERTERA MAGNA. In the clvil 
law. A great aunt; a grandmother's sister, 
(avie sorer.) Dig. 38, 10, 10, 15. 


MATE. The officer second in command 
on a merchant vessel. 


MATELOTAGE. In French law. The 
hire of a ship or boat. 


MATER-FAMILIAS. Lat. In the civil 
law. The mother or mistress of a family. 


oe. ; : MATERTERA MAJOR. In the civil 
A chaste woman, married or single, Calvin. 


law. A greater wunt; a great-grand mother’s 

MATERIA. Lat. In the civil law. | sister, (proavie soror ;) «father's or mother’s 
Matcrials; as distinguished from speeées, or | great-aunt, (patris vel matris matertera 
the form given by labor and skill. Dig. 41, | magna.) Dig. 38, 10, 10, 16. 


1): P ; 2 1: 
er tact ey vette Urea Conds @ ble MATERTERA MAXIMA. In thecivil 


ee ltd oo eee eo law. <A greatest aunt; a great-great-grand- 
BEES TROND a ROS ahe mee Saws PEs mother’s sister, (abavie soror;) a father’s 


In English Pla Matter; substance; | or mother’s greater aunt, (patris vel matris 
subject-matter. 3 11. Comm. $22, matertera major.) Dig. 38, 10, 10, 17. 


MATERIAL. Important; more or less MATH. <A mowing. 
necessary; having influence or effect; going 
to the merits; having to do with matter,as| MATHEMATICAL EVIDENCE. 
distinguished from form. An allegation is Demonstrative evidence; such as establishes 
said to be material when it forms a substan- | its conclusions with absolute necessity and 
tive part of fle case presented by the plead- certainty. It is used in contradistinction to 
ing. . Evidence olfere! in a cause, or a ques- | ™rad evidence. 
tion propounded, is material when it is rele- MATIMA. A godmother. 
vant and goes to the substantial matters in dis- 
pute, or has a legitimate and effective infu- | MATRICIDE. The murder of a mother; 
ence or bearing on the decision of the case, | or one who has slain his mother. 


MATERIAL-MAN. A person who has MATRICULA. In the civil and old En- 
furnished materials used in the construction | Slishlaw. A register of the admission of of 
or repair of a building, structure, or vessel. | cers and persons entered into any body or 
society, whereof a list was made, Hence 

MATERIALITY. The property orchar- | those whoare almitted to a college or univer- 
acter of being material, See MATERIAL. | sity are said tu be “matriculated.” Also a 


MATERIALS. The-substance-or matter kind of almshouse, which had fevenues ap- 
of which anything is made; matter furnished Peopiatads tot, wed was (isu Zi ee — 
: oe ‘ the church, whence the name was given [oe 
for the erection of a house, ship, or other tieshurcnieeie. e iatoon 
structure; matter used orintended to be used pee a ee 
in the construction of any mechanical prod- MATRICULATE. To enter as a afu- 
uct. See 71 Pa. St. 293. dent in a university. 


MATRIMONIA. ETC. 


Maitrimonia debent esse libera. Mar- 
tiages ought to be free. A maxim of the 
civillaw. 2 Kent, Comm. 102. 


MATRIMONIAL CAUSES. In En- 
glish ecclesiastical law. Causes of action or 
injuries respecting the rights of marringe. 
One of the three divisions of causes or inju- 
ries cognizalle by the ecclesiastical courts, 
comprising suits for jactitation of marriage, 
and for restitution of conjugal rights, di- 
yorces, and suits for alimony. 3 Bl. Comm. 
92-04; 3 Steph. Comm. 712-714. 


MATRIMONIUM. Lat. In Roman law. 
A leval marriage, contracted in strict aceord- 
ance with the forms of the older Roman law, 
i. é, either with the farreum, the co-emptio, 
or by uwsus, This was allowed only to Roman 
citizens and to those neighboring peoples to 
whom the right of conrwbium liad been con- 
ceded. The effect of such a marriage was to 
bring the wife into the manws, or marital 
power, of the huskand, and to create the 
patria potestas over the children. 


Matrimonium subsaquens tollit pee- 
eafum preecedens. Subsequent marriage 
cures preceding criminality. 


MATRIMONY. Marriage, (g.0.,) inthe 
sense of the relation or status, not of the cere- 
mony. 


MATRIX. Inthe civillaw. The proto- 
col or first draft of a legal instrument, from 
which ali copies must be taken. See (Tex.) 
16S. W. Rep. 63. 


MATRIX ECCLESIA. Lat. A mother 
church, This term was anciently applied to 
a cathedral, in relation to the other churches 
in the sume see, or to a parochial ehurch, in 
Telation to the chapels or minor churches at- 
tached to it or depending on it. Blount, 


MATRON. A married woman; an elder- 
ly woman. The female superintendent of an 
establishment or institution, such as a hos- 
pital, an orphan asylum, etc., is often so 
called. 


MATRONS, JURY OF. Such a jury is 
impateled to try if a woman condemned to 
death be with child. 


MATTER. Facts; substance as distin- 
guished from form; the merits of a case, 


MATTER IN CONTROVERSY, OR 
IN DISPUTE. The subject of litigation; 
the matter for which a suit is brought and 
upon which issue is joined. 1 Wall. 337. 


761 


MATTER OF SUBSTANCE 


MATTER IN DEED. Such matter as 
may be proved or established by a deed or 


spectalty. Matter of fact, in contradistine- 
tion to matter of law. Co, Litt. 320; Steph. 
Pl, 197. 


MATTERIN ISSUE. That upon which 
the plaintiff proceeds in his action, and whieh 
the defendant controverts by his pleadings, 
not including facts offered in evidence to es- 
tablish the matters in issue, 15 N. H. 9. 
That ultimate fact or state of facts in dis- 
pute upon which the verdict or finding is 
predicated. 4 Fed. Rep. 386, See 2 Black, 
Judgm. § 614, and cases cited. 


Matter in ley ne serra mise in boutche 
del jurors. Jenk. Cent. 180. Matter of 
law shall not be put into the mouth of the 
jurors. 


MATTERIN PATS. Matter of fact that 
is not in writing; thus distinguished from 
matter in deed and matter of record; matter 
that must be proved by parol evidence. 


MATTER OF COURSE. Anything 
done or tuken in the course of rontine or 
usual procedure, which is permissible and 
valid without being specially applied for and 
allowed. 


MATTER OF FACT. That which is 
to be ascertained by the senses, or by the 
testimony of witnesses describing what they 
have perceived. Distinguished from matter 
of law. 


MATTER OF FORM. Whatever be- 
longs or relates merely to the form of a plead- 
ing or other instrument, or to its language, 
arrangement, or technicality, without affect- ~ 
ing its substance, (¢.e., its substantial valid- 
ity or sufficiency,) is called “matter of form,” 
as distinguished from “matter of substanee.” 


MATTER OF LAW. Whatever is to 
be ascertained or decided by the application 
of statutory rules or the principles and de- 
terminations of the law, as distinguished 
frora the investigation of particular facts, is 
called “matter of law.” 


MATTER OF RECORD. Any judicial 
matter or proceeding entered on the records 
of a court, and to be proved by the produc- 
tion of such record. It differs from matter 
in deed, which consists of facts which may 
be proved by specialty. 


MATTER OF SUBSTANCE. That 
which goes to the merita. The opposite of 
matter of form. 


MATTERS OF SUBSISTENCE, ETC. 


MATTERS OF SUBSISTENCE FOR 
MAN. This phrase comprehends all articlea 
or things, whether animal or vegetable, liv- 
ing or dead, which are used for food, and 
whether they are consumed in the form in 
which they are bought from the producer or 
are only consumed after undergoing a process 
of preparation, which is greater or iess, ac- 
eording to the character of the article. 19 
Grat, 813. 


Maturiora sunt vota mulierum quam 
virorum, 6 Coke, 71. The desires of women 
arte more mature than those of men; 7. e., 
women arrive at maturity earlier than men. 


MATURITY, In mereantile law, The 
time when a bill of exchange or promissory 
note becomes due. Story, Bills, § 329, 


MAUGRE. L. Fr. 
the willof. Litt. § 672. 


MAUNDY THURSDAY. The day pre- 
ceding Good Friday, on which princes gave 
alms. ‘ 


MAXIM. An estublished principle or 
proposition. A principle of law universally 
admitted, as being a correct statement of the 
law, or as agreeable to natural reason, 

Coke defines a maxim to be “conclusion of 
Teason,” and says that it is so called “gquda 
maxima ejus dignitas et certissima auctori- 
tas, et guod maxime omnibus probetur.” 
Co. Litt. Ile. He says in another place: 
“A maxime is a proposition to be of all men 
confessed and granted without proofe, argu- 
ment, or discourse.” Id, 67a. 

The maxims of the law, in Latin, French, 
and English, will be found distributed 
through this book in their proper alphabet- 
ical order, 


In spite of; against 


Maxime paci sunt contraria vis et 
injuria. The greatest enemies to peace are 
force and wrong, Co, Litt. ifld. 


Maximus crroris populus mavister. 
Bacon. ‘The people is the greatest muster of 
error. 


“MAY,” in the construction of publi 
statutes, is to be construed “must” in all cases 
where the legislature mean to impose a posi- 
tive and absolute duty, and not merely to 
give a diserelionary power. 1 Pet, 46, 64; 
3 Hill, 612, 615. 


MAYHEM. In criminal law. The act 
of unlawfully and violently depriving another 
of the use of such of his members as may 
render him less able, in fighting, either to de- 


762 


MEAL-RENT. 


fend himself or annoy his adversary. 4 Bi. 
Comm. 205. 

Every person who unlawfully and mali- 
ciously deprives a human being of a member 
of his body, or disables, disfigures, or ren- 
ders it useless, or cuts or disables the tongue, 
or puts out an eye, or slits the nose, ear, or 
lip, is guilty of mayhem. Pen. Code Cal. 
§ 203. 


MAYHEMAVIT. Maimed. This isa 
term of art which cannot ve supplied in plead- 
ing by any other word, aa mutilavit, trunca- 
vit, ete. 3 Thom. Co. Litt. 548; 7 Mass. 247. 


MAYN. L. Fre 
Britt. e. 28, 


MAYNOVER. L. Fr. A work of the 
hand; a thing produced by manual labor. 
Yearb, M. 4 Edw. UTI. 88. 


MAYOR. The executive head of a mu- 
nicipal corporation; the governor or chief 
mavistrate of a city. 


A hand; handwriting. 


MAYOR'S COURT. <A court established 
in some cities, in which the mayor sits with 
the powers of a police judge or committing 
miagistrate in respect to offenses committed 
within the city, and sometimes with civil 
jurisdiction in small causes, or other special 
statutury powers. 


MAYOR'S COURT OF LONDON. 
An inferior court having jurisdiction in civil 
cases where the whole cause of action arises 
within the city of London. 


MAYORALTY,. The oftice or dignity of 
a mayor. 


MAYORAZGO. In Spanish law. The 
right to the enjoyment of certain aggregate 
property, left with the condition thereon im- 
posed that they are to pass in their integrity, 
perpetually, successively to the eldest son. 
Schm. Civil Law, 62. 


MAYORESS. The wife of a mayor. 


MEAD. Ground somewhat watery, not 
plowed, but covered with grass and flowers. 
Ene. Lond. 


MEADOW. A tract of low or level lana 
producing grass which is mown for hay. 
Webster. 

A tract which lies above the shore, and is 
overflowed by spring and extraordinary tides 
only, and yields grasses which are good for 
hay. 34 Conn. 429. 


MEAL-RENT, 
meal, 


A rent formerly paid in 


= 


4 


MEAN 


MEAN, or MESNE: 
two extremes, whether applied to persons, 
things, or time. 


MEANDER. ‘To meander means to fol- 
low a winding or flexuous course; and when 
it is said, in « description of land, “thence 
with the meander of theriver,” it must mean 
a meandered line,—a line which follows the 
sinuosities of the river,—or, in other words, 
that the river is the boundary between the 
points indicated. 14 Or. 341, 12 Pac. Rep. 
495; 10 Minn. 100, (Gil. 75.) 

This term is used in some jurisdictions with 
the meaning of surveying and mapping a 
stream according toits meanderings, or wind- 
ings and turnings. See 2 Wis, 317. 


MEANS. I. The instrument or agency 
through which an end or purpose is accom- 
plished, 

2. Resources; available property; money or 
property, as an avallable instrumentality for 
elfecting a purpose, furnishing a livelihood, 
paying a debt, or the like. 


MEANS OF SUPPORT. This term em- 
braces all those resources from which the 
necessaries and comforts of life are or may be 
supplied, such as lands, goods, salaries, wages, 
or other sources of income. 71 Ill. 241. 


MEASE, or MESE. Norman- French 
fora house. Litt. §3 74, 251, 


MEASON-DUE. (Corruption of maison 
de Dieu.) A house of God; a monastery; 
religious hous6 or hospital. See $Y Eliz.c. 5. 


MEASURE. That by which extent or 
dimension is ascertained, either length, 
brealth, thickness, capacity, or amount, 
Webster. Therule by which anything is ade 
justed or proportioned. 


MEASURE OF DAMAGES. Therule, 
or rather the system of rules, governing the 
adjustment or apportionment of damages as 
a compensation for Injuries in actions at 
law. 


MEASURE OF VALUE. In the ordi- 
nary sense of the word, “measure” would 
iInean something by comparison with which 
we may ascertain what 1s the value of any- 
thing. When weconsider, further, that value 
itself is relative, and that two things are nee- 
essary to constitute it, independently of the 
third thing, which is to measure it, we may 
define a “measure of value” to be something 
by comparing with which any two other 
things we may infer their value in relation 
to one another. 2 Mill, Pol. Econ. 101. 


763 


A middle between ! 


MEDIATE POWERS 


MEASURER, or METER. An officer 
in the city of London, who measured woolen 
clothes, coals, ete. 


MEASURING MONEY. In old En- 
glish law, A duty which some persons ex- 
acted, by letters patent, for every piece of 
cloth made, besides alnage. Now abolished. 


MECHANIC. A workman employed in 
shaping and uniting materials, suchas wood, 
metil, etc,, into some kind of structure, ma- 
chine, or other object, requiring the use of 
tools, 11 Lea, 517; 13 Pa. St. 525. 


MECHANIC’S LIEN. A species of 
lien ¢reated by statute in most of the states, 
which exists in favor of persons who have 
performed work or furnished material in and 
fur the erection ofa building. Their lien at- 
taches to the land as well as the building, 
and is intended to secure for them a priority 
of payment, 

The lien of a mechanic Is created by law, 
and is intended to be a security for the price 
and value of work performed and materials 
furnished, and as such it attaches te and ex- 
ists on the land and the building erected 
thereon, from the commencementof the time 
that the labor is being performel and the mate- 
rials furnished; and the mechanic has an act- 
ual and positive interest in the building ante- 
rior to the time of its recognition by the court, 
or the reducing of the amount due to a judg- 


ment. 12 Iowa, 292. 
MEDERIA. In old records. A house or 


place where metheglin, or mead, was made, 


MEDFESB. Inold Englishlaw, A bribe 
or reward; a compensation given in exchange, 
where the things exchanged were not of equal 
value. Cowell. 


MEDIA ANNATA. In Spanish law. 
Half-yearly profits of land. 5 Tex. 34, 79. 


MEDIA NOX. In old English law. 
Midnight. Ad mediam noctem, at midnight, 
Fieta, lib. 5, c. 5, § 31. 


MEDIA ET INFIRMA MANUS 
HOMINES. Men of a middleand base con- 
dition. Blount. 


MEDIANUS HOMO. 
fortune. 


MEDIATE POWERS. Those incident 
to primary powers given by a principal to 
his agent. For example, the general au- 
thority given to collect, receive, and pay debts 
due by or fo the principal is a primary pow- 
er. In order to accomplish this, it is fre 


Aman of middie 


MEDIATE TESTIMONY 


quently required to settle accounts, adjust 
disputed claims, resist those which are un- 
just, and answer and defend suits. These 
Subordinate powers are sometimes called 
“mediate powers.” Story, Ag. § 58. 


MEDIATE TESTIMONY. Secondary 
evidence, (g. 0.) ? 


MEDIATION. Intervention; interposi- 
tion; the act of a third person who interferes 
between two contending parties with a view 
to reconcile them or persuade them to adjust 
or settle their dispute. In internationai law 


and diplomacy, the word denotes the friendly | 


interference of a state in the controversies of 
others, for the purpose, by its influence and 
by adjusting their difficulties, of keeping the 
peace in the family of nations. 


MEDIATOR. One who interposes be- 
tween parties at variance for the purpose of 
reconciling them. 


5 MEDIATORS OF QUESTIONS. In 

Englishlaw. Six persons authorized by stat- 
ute; (27 Edw. Ill. St. 2, c. 24,) who, upon 
any question arising among merchants relat- 
ing to unmerchantable wool, or undue pack- 
ing, ete., might, before the mayor and officera 
of the staple, upon their oath certify and 
setile the same; to whose determination 
therein the parties concerned were to sub- 
mit. Cowell. 


MEDICAL EVIDENCE. Evidence 
furnished by medical men, testifying in their 
professional capacity as experts, or by stand- 
ard treatises on medicine or surgery, 


MEDICAL JURISPRUDENCE. The 
science which applies the principles and prac- 
tice of the different branches of medicine to 
the elucidation of doubtful questions in a 
court of justice. Otherwise called “forensic 
medicine,” (g. v.) A sort of mixed science, 
which may be considered as common ground 
to the practitioners both of law and physic. 
1 Steph. Comm. 8. 


MEDICINE. “The practice of medicine 
is a pursuit very generally known and under- 
stood, and so also is that of surgery. The 
former includes the application and use of 
medicines and drugs for the purpose of cur- 
ing, mitigating, or alleviating bodily diseases, 
while the functions of the latter are limited 
to manual operations usually performed by 
surgical instruments or appliances.” 24 
Hun, 633. 


MEDICINE-CHEST. <A box containing 
an assortment of medicines, required by stat- 


764 


MIEGBOTE 


ute to be carried by all vessels aboye a cer- 
tain tonnage. 


MEDICO-LEGAL. Relating to the law 
concerning medical questions. 


MEDIETAS LINGUA. In old prae- 
tice. Moiety of tongue; half-tongue. Ap- 
plied to a jury impaneled in a cause consist- 
ing the one half of natives, and the other 
half of foreigners. See De MEpIEraTE 
LINGUA. 


MEDIO ACQUIETANDO. A judicial 
writ to distrain a lord for the acquitting ofa 
mesne lord from a rent, which he had ac- 
knowledged in court not to belong to him. 
Reg. Jur. 129. 


MEDITATIO FUG. In Scotch law. 
Contemplation of flight; intention te abscond, 
2 Kames, Eq. 14, 15. 


MEDIUM TEMPUS. 
law. 


In old English 
Meantime; mesne protits. Cowell 


MEDLETUM, In old Englishlaw. A 
mixing together; a medley or mélée; an af- 
fray or sudden encounter. An offense sud- 
denly committed in an affray. The English 
word “medley” is preserved in the term 
“chance-mediey.” An intermeddling, with- 
out violence, in any matter of business, 
Spelman. 


MEDLEY. An affray; a sudden or cas- 
ual fighting; a hand to hand battle; a méldéa, 
See CHANCE-~MEDLEY; CHAUD-MEDLEY. 


MEDSCEAT, In old English law. A 
bribe; hush money. 


MEDSYPP, A harvest supper or enter- 
tainment given to laborers at harvest-home. 
Cowell. 


MEETING. A coming together of per- 
sons; an assembly. 

In the Jaw of corporations, meetings are of 
two kinds,—ordinary and extraordinary; or, 
as they are also called, general and special. 
Ordinary or general meetings are usually 
held at stated times and for the transaction 
of business generally. Extraordinary or 
special meetings are held as occasion may re- 
quire for the transaction of some particular 
business, which ought to be specified in the 
notice convening the meeting. One meeting 
may be both ordinary and extraordinary. 
Lind. Comp. 572, 


MEGBOTE. In Saxon law. 
pense for the murder of a relation, 


A recom- 


MEIGNE 


MEIGNE, or MAISNADER. 
English law. <A family. 


MEINDRE AGE. LFr. 
lesser age. Kelham. 

MEINY, MEINE, or MEINIE. The 
royal household; a retinue. 

MEJORADO. In Spanish law. Pre- 
ferred; advanced. White, New Recop. 1. 
Baus. 10, ¢. 1, § 4. 


MELANCHOLIA.. In medical jurispru- 
dence. <A kind of mental unsoundness char- 


Minority ; 


acterized by extreme depression of spirits, ill- | 


grounded fears, delusions, and brooding over 
one particular subject or train of ideas. 
Webster. 


MELDFEOH. In Saxon law. The rec- 
ompense due and given to him who made 
discovery of any breach of penal laws com- 
mitted by another person, called the “pro- 
moter’s [#. ¢., informer’s] fee.” Wharton. 


MELIOR. Lat. Better; the better. 
Melior res, the better (best) thing or chattel. 
Braet. fol. 60. 


Melhor est conditio defendentis. The 
condition of the partly in possession is the 
better ons, i.e., where the right of the parties 
is equal. Broom, Max. 715, 719. 


Moelior est conditio possidentis, et rei 
quam actoris. 
sessor is the better, and the condition of the 
defendant is better than that of the plaintiff. 
4 Inst. 180; Broom, Max. 714, 719. 


Melior est conditio possidentis ubi 
neuter jus habet. Jenk. Cent. 118. The 
conditicu of the possessor is the better where 
neither of the two bas a right. 


Melior est justitia vere preveniens 
quam severe puniens. That justice which 
absolutely prevenis [a crime] is better than 
that which severely punishes it. 3 Inst. 
Epil. 


MELIORATIONS. InScotchlaw. Im- 
provements of an estate, other than mere re- 
pairs; betterments. 1 Bell, Comm. 73. 


Moeliorem conditionem ecclesis suse 
facere potest prelatus, deteriorem ne- 
quaquam. Co, Litt. 101. <A bishop can 
make the condition of his own church better, 
but by no means worse. 


Meliorem conditionem suam facere 
potest minor, deteriorem nequaquam. 
Co. Litt. 337. A minor can make his own 
condition better, but by no means worse. 


765 


In old | 


The condition of the pos- | 


MEMBRANA 


Melins est in tempore occurrere. 
quam post causam vulneratum reme- 
dium qurerere. 2 Inst.299. Itishetter to 
meet a thing in time than after an injury in- 
flicted to seek a remedy. 


Melius est jus deficions qnam jus in- 
certum. Law that isdeticient is better than 
Jaw that is uncertain. Lofft, 395, 


Melius est omnia mala pati quam 
malo consentire. 3 Inst. 23. It is better 
to suffer every ill than to consent to ill. 


Melius est petere fontes quam sectari 
rivulos. It is better to go to the fountain 
head than to follow little streamlets. 


Melius est recurrere quam male cur- 
rere. It is better to run back than to run 
badly; it is better to retrace one's steps than 
to proceed improperly. 4 Inst. 176. 


MELIUS INQUIRENDUM. To be 
better inquired into. 

In old English law. The name of a 
writ commanding a further inquiry respect- 
ing a matter; as, after an imperfect inquisi- 
tion in proceedings in outlawry, to have a 
new inquest as to the value of lands. 


MEMBER. One of the persons consti- 
tuting a partnership, association, corporation, 
guild, etc. 


One of the persons constituting a court, a 
legislative assembly, etc. 

One of the limbs or portions of the body 
eapable of being used in fighting in self-de- 
fense. 


MEMBER OF CONGRESS. A mem- 


| ber of the senate or house of representatives 


of the United States. 
ticularly the latter. 


MEMBER OF PARLIAMENT. One 
having the right to sit in either house of the 
British parliament. 


In popular usage, par- 


MEMBERS. In English law. Places 


| where a custom-house has been kept of old 


time, with officers or deputies in attendance; 
and they are lawful places of exportation or 
importation. 1 Chit. Com. Law, 726. 


MEMBRANA. Lat. In the civil law. 
Parchment. Dig. 32, 52. 

In old Hnglish law. <A skin of parch- 
ment. The ancient rolls usually consist of 
several of these skins, and the word “smen- 
brane” is used, in citations to them, in tha 
same way as “page” or “folio,” to distin- 


| guish the particular skin referred to, 


MEMBRUM 


MEMBRUM. 
land. 


MEMOIRE. In French law. A docu- 
ment in the form of a petition, by which ap- 
peals to the court of cassation are initiated. 


A slip or smal) piece of 


MEMORANDUM. «Lat. To be remem- 
bered; beitremembered. A formal word with 
which the body of a record in the court of 
king’s bench anciently commenced. Townsh. 


766 


Pl. 486; 2 Tidd, Pr. 719. The whole clause is | 


now, in practice, termed, from this initial 
word, the “memorandum,” and its use is 
supposed to have originated from the cir- 
cumstance that proceedings “by bill” (in 
which alone it has been employed) were for- 
merly considered as the by-business of the 
court. Gilb, Com. PI. 47, 48. 

Also an informal note or instrument em- 
bodying something that the parties desire to 
fix in memory by the aid of written evidence, 


MEMORY 


that the underwriters are not to be liable for 
damage to these articles caused by sea- water 
or the like. Maude & P, Shipp. 371; Sweet. 


MEMORANDUM IN ERROR. A doc- 
ument alleging error in fact, accompanied 
by an affidavit of such matter of fact. 


MEMORANDUM OF ALTERA- 
TION. Formerly,in England, where a pate 
ent was granted for two inventions, one of 
which was not new or not useful, the whole 
patent was bad, and the same rule applied 
when a material part of a patent for a single 
invention hand either of those defects. To 
remedy this the statute5 & 6 Wm. IV.c. 83, 
empowers a patentee (with the fiat of the at- 
torney general) to enter a disclaimer (q. 0.) 
or a Memorandum of an alteration in the title 
or specification of the pateut, not being of 
such a nature as to extend the exclusive 


| Tight granted by the patent, and thereupon 


or that is to serve as the basis of a future | 


,tormai contract or deed. 

This word is used in the statute of frauds 
as the designation of the written agreement, 
or note or evidences thereof, which must ex- 
ist in order to bind the parties in the cases 
provided. The memorandum inust be such 
as lo disclose the parties, the nature and sub- 
stance of the contract, the consideration and 
promise, and be signed by the party to be 
bound or his authorized agent. See 2 Kent, 
Comm. 510. 


MEMORANDUM ARTICLES. Inthe 
law of marine insurance, this phrase desig- 
nates the articles of merchandise which are 
usually mentioned in the memorandum 
clause, (g. v.,) and for which the underwrit- 
er's liability is thereby limited. 


MEMORANDUM CHECK. A check 
given by a borrower to a lender, for the 
amount of a short loan, with the understand- 
ing thatit is not to be presented at the bank, 
but will be redeemed by the maker himself 
when the loan falls due. This understand- 
ing is evidenced by writing the word “ dfem.” 
on the check. This is not unusual among 
merchants. 


MEMORANDUM CLAUSE. Ina pol- 
icy of marine insurance the memorandum 
elause is a clause inserted to prevent the un- 
derwriters from being liabie for injury to 
goods of a peculiarly perishable nature, and 
for minor damages. It begins as follows: 
“N. B. Corn, fish, salt, fruit, flour, and 
seed are warranted free from average, unless 
general, or the ship be stranded,” —meaning 


the memorandum is deemed to be part of the 
letters patent or the specification. Sweet. 


MEMORANDUM OF ASSOCIA- 
TION. <A document to be subscribed by 
seven or more persons associated fora lawful 
purpose, by subscribing which, and other- 
wise complying with the requisitions of the 
companies’ acts in respeet of registration, 
they may form themselves into an incorpo- 
tated company, with or without limited lia- 
bility. 3 Steph. Comm, 20. 


MEMORIAL. A document presented to 
a legislative body, or to the executive, by one 
or more individuals, containing a petition ora 
representation of facts. 

In English law, That which contains 
the particulars of a deed, etc., and is the in- 
strument registered, as in the case ofan an- 
nuity which must be registered. Wharton, 


MEMORITER. Lat. From memory; 
by or from recollection. Thus, memovriter 
proof of a written instrument is such as is 
furnished by the recollection of a witness 
who had seen and known it. 


MEMORIZATION. Committing any- 
thing to memory. Used to describe the act 
of one who listens to a public representation 
of a play or drama, and then, from his recol- 
lection of its scenes, incidents, or language, 
reproduees it, substantially or in part, in dor- 
ogation of the rights of the author. See § 
Term R, 245; 14 Amer. Law Reg. (N. 8.) 
207. 


MEMORY. Mental capacity; the mental 
power to review and recognize the successive 


MEMORY 


states of consciousness in their consecutive 
order. This word, as used in jurisprudence 
to denote one of the psychological elements 
necessary in the making of a valid will or con- 
tract or the commission of a crime, implies 
the mental power to conduct a consecutive 
train of thought, or an orderly planning of 
affairs, by recalling correctly the past states 
of the mind and past events, and arranging 
them in their due order of sequence and in 
their logical relations with the events and 
mental states of the present. 


The phrase “sound and disposing mind ard mem- 
ory” means not merely distinct recollection of the 
items of one’s property and the persons among 
whom it may be given, but entire power of mind 
to dispose of property by will. Abbott. 

Also the reputation and name, good or bad, 
which a man leaves at his death. 


MEMORY, TIME OF. According to 
the English common law, which bas been 
altered by 2&8 Wm. IV. c. 71, the time of 
memory commenced from the reign of hich- 
adI., A.D. 1189. 2 Bl. Comm. 31. 


MEN OF STRAW. Men who used in 
former days to ply about courts of law, so 
called from their manner of making known 
their occupation, (%. ¢., by a straw in one 
of their shoes,) recognized by the name 
of “straw-shoes,” An advocate or lawyer 
who wanted a convenient witness knew by 
these signs where to meet with one, and the 
colloquy between the parties was brief. 
“Don’t you remember?” said the advocate; 
to which the ready answer was, ‘“‘To be sure 
Ido.” “Then come into court and swear 
it.” And straw-shoes went into court and 
swore it. Athens abounded in straw-shoes. 
Quart. Rev. vol. 33, p. 344. 


MENACE. A threat; the declaration or 
snow of a disposition or determination to in- 
flict an evil or injury upon another. 


MENETUM. In old Scotch law. A 
stock-horn; a horn made of wood, “with 
circles and girds of the same,” Skene. 


MENIAL. <A servant of the lowest or- 
der; more strictly, a domestic servant living 
under his master’s roof. 


MENS. Lat. Mind; intention; mean- 
ing; understanding; will. 


MENS LEGISLATORIS, 
tion of the law-maker. 


MENS REA. Lat. A guilty mind; 
a guilty or wrongful purpose; a criminal in- 
tent, 


The inten- 


767 


MERA NOCTIS 


Mens testatoris in testamentis spect- 
tanda est. Jenk. Cent. 277. The inten- 
tion of the testator is to be regarded in wills. 


MENSA. Patrimouy or goods and nec- 
essary things for livelihood. Jacob. <A ta- 
ble; the table of a money-changer. Dig. 2, 
14, 47. 


MENSA ET THORO. From bed and 
board. See Divorce. 


MENSALIA. Parsonages or spiritual 
livings united to the tables of religious 
houses, and called “mensal benefices” 
amongst the canonists. Cowell. 


MENSIS. Lat. In the civil and old 
Englishlaw, A month. Mensis vetitus, the 
prohibited month; fenee-month, (gq. 0.) 


MEMNSOR. 
of Jand; a surveyor. 
6; Cod. 12, 28. 


MENSULARIUS. In thecivillaw. A 
money-elianger or dealer in money. Dig. 2, 
14, 47, 1. 


MENSURA. 
measure. 


MENSURA DOMINI REGIS. “The 
measure of our lord the king,” being the 
Weights and measures established under 
King Richard I. in his parliament at West- 
minster, 1197. 1 Bl. Comm. 275; Mozley & 
Whitley. 


MENTAL ALIENATION. A phrase 
sometimes used to describe insanity, (g. v.) 


MENTAL RESERVATION. A silent 
exception to the general words of a promise 
or agreement not expressed, on account of a 
general understanding on the subject. But 
the word has been applied to an exception 
existing in the mind of the one party only, 
and has been degraded to signify a dishonest 
excuse for evading or infringing a prom- 
ise. Wharton. 


MENTIRI. Lat. To lie; to assert a 
falschood. Calvin.; 8 Bulst. 260, 


MENTITION. 
hood. 


MENU, LAWS OF. A collection or 
institute of the earliest laws of ancient In- 


Inthe civillaw. A measurer 
Dig. 11, 6; Id. 50, 6, 


In old English law. A 


Theact of lying; a false- 


dia. The work is of very remote antiquity. 
MER, or MERE. A fenny place. Cow- 
ell. 


MERA NOCTIS. Midnight. Cowell. 


MERANNUM 
MERANNUM. In old records. Tim- 
bers; wood for building. 


MERCABLE. Merchantable; to be sold 
or bought. 


MERCANTANT. 


MERCANTILE AGENCIES. Estab- 
lishments which make a business of collect- 
ing information relating to the credit, cbhar- 
acter, responsibility, and reputation of mer- 
chants, for the purpose of furnishing the in- 
formation to subseribers. 15 Amer, & Eng. 
Ene. Law, 280. 


MERCANTILE LAW. An expression 
substantially equivalent to the Juw-merchant 
or commercial law. It designates the system 
of rules, customs, and usages generally 
recognized and adopted by merehants and 
traders, and which, either in its simplicity or 
as modified by common law or statutes, con- 
stitutes the law for the regulation of their 
transactions and the solution of their contro- 
versies. 


MERCANTILE LAW AMENDMENT 
ACTS, The statutes 19 & 20 Vict. cc. 60, 
97, passed mainly for the purpose of assimi- 
lating the mercantile law of England, Scot- 
land, aud Ireland. 


MERCANTILE PAPER. Commercial 
paper; such negotiable paper (bills, notes, 
checks, etc.) as is made or transferred by 
and between merchants or traders, and is 
governed by the usages of the business world 
and the law-merchant. 


A foreign trader. 


MERCANTILE PARTNERSOIP. 
One which habitually buys and sells; one 
which buys for the purpose of afterwards 
selling. 32 Pittsb. Leg. J. (O. 8.) 510. 


MERCAT. A market. An old form of 
the latter word common in Sevtch law, 
formed from the Latin “mereatum.” 


M@ERCATIVE. Belonging to trade, 


MERCATUM. Lat. A markei. A 
contract of sale. Supplies for an army, 
(commeatus.) 


MERCATURE. The practice of buying 
and selling. 


MERCEDARY. A hirer; one that hires, 


MERCEN-LAGE. The law of the Mer- 
cians. One of the three principal systems of 
laws which prevailed in England about the 
beginning of the eleventh century. It was 
observed in many of the midland counties, 


768 


MERCHANTS’ ACCOUNTS 


and those bordering on the principality of 
Wales, 1 Bl. Comm. 65. 


MERCENARIUS. A hireling or serv- 
ant. Jacob. 


MERCES. Inthe civillaw. Reward of 
labor in money or other things. As distin. 
guished from “pensio,” it means the rent of 
farms, (prediarustici.) Calvin. 


MERCHANDISE. All commodities 
which merchants usually buy and sell, wheth- 
er at wholesale or retail; wares and commod- 
ities such as are ordinarily the objects of 
trade and commerce. But the term is never 
understood as including real estate, and is 
rarely applied to provisions such as are pur- 
chased day by day, or to such other articles 
as are required for immediate consumption. 


MERCHAWDISE MARKS ACT, 1862. 
The statute 25 & 26 Vict. c. 88, designed to 
prevent the fraudulent marking of merchan- 
dise and the fraudulent sale of merchandisa 
falsely marked. 


MERCHANT. A man who traflics or 
carries on trade with foreign countries, or 
who exports and imports goods and aclis them 
by wholesales. Webster. Merchants of this 
description are commonly known by the name 
of “shipping merehants.” 

A trader; one who, as a business, buys and 
sells wares and merchandise. 


MERCHANT APPRAISERS. Whera 
the appraisement of an invoice of imported 
goods made by the revenue officers at the 
eustom-house is not satisfactory to the im- 
porter, persons may be selected (under this 
name) to make a definitive valuation. They 
must be merchants cngaged in trade, 


MERCHANT SHIPPING ACTS. 
Certain English statutes, beginning with the 
St. 16 & 17 Viet. c. 131, whereby a generai su- 
perintendence of merchant shipping is vested 
in the board of trade. 


MERCHANTABLE. Fit for sale; yvend- 
ible in market; of a quality such as will 
bring the ordinary market price. 


MERCHANTMAN. A ship or vessel 
einployed in forvign or domestic commeree 
or in the merchant service, 


MERCHANTS’ ACCOUNTS. Ac 
counts botween merchant and merchant, 
which must be current, mutual, and unset- 
tled, consisting of debts and credits for mer 
chandise. 6 How. (Miss.) 328. 


MERCHANTS, STATUTE OF 


769 


MERGER 


MERCHANTS, STATUTE OF. The 1 ity by the plaintiff or defendant in the suit. 


English statute 13 Edw. 1. St. 3, repealed by 
26 & 27 Vict. c. 125. 


MERCHET. In feudal law. A fine or 
composition paid by inferior tenants to the 
lord for liberty to dispose of their daughters 
in marriage. Cowell. The same as mar- 
cheta (q. 0.) 


MERCIAMENT. Anamerciament, pen- 
alty, or fine, (q. 0.) 


MERCIMONIA. In old writs. Wares. 
Mercimonia et merchandizas, wares und mer- 
chandises. Reg. Brev. Append. 10. 


MERCIMONIATUS ANGLIA. In 
old records. The impost of England upon 
merchandise. Cowell. 


Mercis appellatio ad res mobiles tan- 
tum pertinet. The term “merchandise” 
belongs to moyable things only. Dig. 50, 
16, 66. 


Mereis appellatione homines non con- 


tineri. Men are not included under the de- 
nomination of “merchandise.” Dig. 50, 16, 
207. 


MERCY. In practice. The arbitra- 


ment of the king or judge in punishing of- | 


fenses noi directly censured by law. Jacob. 
So, “to be in mercy” signifies to be amercved 
or fined for bringing or defending an un- 
just suit, or to be liable to praishment in 
tle discretion of the court. 

In criminal law. The discretion of a 
judge, within the limits preseribed by posi- 
tive Jaw, to remit allogether the punishment 
to which a convicted person is liable, or to 
mitigate the severity of his sentence; as 
whien a jury recommends the prisoner to the 
mercy of the court, 


MERE. A marsh. Spelman, 


MERE. L. Fr. Mother. le, mere, 
Jille, grandmother, mother, daughter. Britt. 
c. 89. Hin venire sa mere, in its mother’s 
womb. 


Sax. 


MERE MOTION. The fres and volun- 
tary act of a party himself, done without the 
suggestion or influence of another person, 
is said to be done of his mere motion, ex 
mero motu, {qg.v.) Brown. 

The phrase is used of an interference of 
the courts of law, who will, under some cir- 
eumstances, of their own motion, olject to 
an irregularity in the proceedings, though 
no objection has been takeu to the informal- 

AM.DIOT.LAW—4Y 


3 Chit. Gen, TI'r, 450. 
MERE RIGHT. The mere right of 


_property in land; the jus proprietatis, with- 


out either possession or even the right of 
possession. 2 Bl. Comm. 197. The abstract 
right of property. 


MERE-STONE. In old English law. 
A stone for bounding or dividing lauds. 
Yearb. Prl8 Hen. Vi. 5. 


MERENNIUM. In old records. Tim- 
ber. Cowell. 
MERUTRICIOUS. Of the nature of 


unlawful sexual connection. The term is 
descriptive of the relation sustained by per- 


| sons who contract a marriage that is void by 


1B1,. Comm. 436. 


MERGER. The fusion or absorption of 
one thing or right into another; generally 
spoken of a case where one of the subjects 
is of less dignity or importance than the 
other. Here the less importaut ceases to 
have an independent existence, 

In real-property law. It is a general 
principle of law that where a greater estate 
and a less coincide and meet in one and the 
same person, Without any intermediate estate, 
the less is inmedintely annihilated, or, in the 
law phrase, is said to be merged, that is, 
sunk or drowned, in the greater. Thus, if 
there be tenant for vears, and the reversion 
in fee-simple descends Lo or is purchased by 
him, the term of years is merged in the in- 
heritance, and slall never exist any more. 
2 BI. Comm. 177; 1 Steph. Comm. 293; 4 
Kent, Comm, 99. 

Of rights. This term, as applied to 
rights, is equivalent to “confusio” in tiie 
Roman law, and indicates that where the 
qualities of debtor and creditor become unit- 
ed in the same individual, there arises a eon- 
fusion of rights which extinguishes both 
qualities; whence, also, merger is often called 
“extinguishment.” Brown, 

Rights of action. Inthe law relating to 
rights of action, when a person takes or ac- 
quires a remedy or security of a higher nat- 
ure, in legal estimation, than the one which 
he already possesses for the same right, then 
his remedies in respect of the minor right or 
security merge in those attaching to the 
higher one. Leake, Cont. 506; 10 C. B. 561. 
As where a claim is merged in the judgment 
recovered upon it. 

In criminal law. When a mancommits 
a great crime which includes a lesser, or com- 


reason of legal incapacity. 


MERIDIES 770 MESNE PROCESS 


mits a felony which includes a tort against a | 


private person, the latter is merged in the 
former. J] East, P. C. 411. 


MERIDIES. In old Engtish law. Noon. 
Fleta, lib. 5, & 5, § 31, 


MERITORIOUS CAUSE OF AC- 
TICW. This description is sometimes ap- 
plied to a person with whom the ground of 
action, or the consideration, originated or 
from whom it moved. For example, where 
a cause of action accrues to a woman while 
sole, and is sued for, after her murriage, by 
her husband and herself jointly, she is called 
the “meritorious cause of action.” 


MERITORIOUS CONSIDERATION, 
One founded upon some moral obligation; a 
valuable consideration in the second degree. 


MERITS. In practice. Matter of sub- 
stance in law, as distinguished from matter 
of mereform; asubstantial ground of defense 
in law. <A defendant is said “to swear to 
merits” or “to make aflidavit of merits” 
when he makes affidavit that he has a good 
and sufficient or substantial defense to the 
action on the merits. 3 Chit. Gen. Pr. 543, 
544, “Merits,” in this application of it, has 
the technical sense of merits in law, and 
not confined to a strictly moral and conscien- 
tious defense. Id. 545; 1 Burrill, Pr. 214. 

As used in the New York Code of Procedure, § 349, 
{t has been held to mean “the strict legal rights of 
the parties, as contradistinguished from those mere 
questions of practice which every court regulates 
for itself, and from all matters which depend upon 
the diseretion or favor of the court.” 4 How. Pr. 
B82. 

A “defense upon the merits” is one which 
depends upon the inherent justice of the de- 
fendant's contention, as shown by the sub- 
stantial facts of the case, as distinguished 
from one which rests upon technical objec- 
tions or some collateral matier. Thus there 
may be a good defense growing out of an 
error in the plaintiff’s pleadings, but there is 
not a defense upon the merits unless the real 
nature of the transaction in controversy 
shows the defendant to be in the right. 


MERO MOTU. See Ex Mero Motu; 
Murr MorTion. 


MERSCUM. A lake; also a marsh or 
fen-land. 


MERTLAGE. Achureh calendar or rue | 


bric. Cowell. 


MERTON, STATUTE OF. Anold En- 
glish statute, relating to dower, legitimacy, 
wardships, procedure, inclosure of common, 


and usury. It was passed in 1235, (20 Een. 
III.,) and was named from Merton, in Surrey, 
where parliament sat that year. See Bar- 
ring. St. 41, 46. 


MERUM. In old English law. Mere; 
naked or abstract. Meruwm jus, mere right. 
Bract. fol. 31. 


MERX. Lat. Merchandise; movable ar- 
ticles that are bought and sold; articles of 
trade. 


Merx est quicquid vendi potest. Mer- 
chandise is whatevercan be sold. Com. 835; 
3 Wood. Lect. 263. 


MESCREAUNTES. LE, Fr. Apostates; 
unbelievers. 


MESCROYANT. A term used in the 
ancient books to designate an infidel or un- 
believer, 


MSE. A house and {ts appurtenance. 
Cowell. 


MESWE. Intermediate; intervening; 
the middle between two extremes, especially 
of rank or time. 

An intermediate lord; alord who stood be- 
tween a tenant and the chief lord; a lord who 
was also a tenant. “Lord, mesne, and ten- 
ant; the tenant holdeth by four pence, and 
the mesne by twelve pence.” Co. Litt. 23a. 


MESNE ASSIGNMENT. If A. grant 
a lease of land to B., and L. assign his inter- 
est toC., and C. in his turn assign his inter- 
est therein to D., in this case the assignments 
so made by B. and C. would ba termed “mesne 
assignments;” that is, they would be as- 
sigaments intervening between A.’s orig- 
inal grant and the vesting of D.’s interest in 
the land under thelastassignment. Brown, 


MESNE INCUMBRANCE. An inter- 
mediate charge, burden, or liability; an in- 
ecumbrance which has been created or has at- 
tached to property between two given periods. 


MESNE LORD. In old English law. 
A middle or intermediate lord; a lord who 
held of a superior lord, 2 Bl. Comm. 59. 
More commonly termed a “mesne,” (g. 9.) 


MESNE PROCESS. As distinguished 


| from final process, this signifies any writ or 


process issued between the commencement of 
the action and the suing out of execution. 
It includes the writ of summons, (although 
that is now the usual commencement of 
actions,) because anciently that was preceded 
by the original writ. 


MESNE PROCESS 771 METATUS 


The writ of capias ad respondendum was | MESSE THANE. One who said mass; 
called “mesne” to distinguish it, on the one a priest. Cowell. 
hand, from the original process by whicha 
suit was formerly commenced; and, on the MESSENGER. One who bears messages 


other, from the final process of execution. or errands; a ministerial officer employed by 
executive officers, legislative bodies, and 
MESNE PROFITS. Intermediate | courts of justice, whose service consists prin- 
profits; thatis, profits which have been accru- | eipally in carrying verlal or written commu- 
Ing between two given periods. ‘Thus, after | nications or executing. other orders, In 
a party has recovered the land itsclf in an | Scotland there are oflicers attached to the 
action of ejectment, he frequently brings | courts, called “messengers at arms.” 
anoliier action for the purpose of recovering An officer attached to a bankruptey court, 
the profits which have been accruing or aris- | whose duty consists, among other things, in 
ing out of the land between the time when | seizing and taking possession of the bank- 


his title to the possession accrued or was | rupt’s estate during the proceedings in bank- 
raised and the time of his recovery in the | ruptey. 


action of ejectment, and such an action is The messenger of the English court of 
thence termed an “action for mesne proits.” | chancery has the duty of attending on the 
Brown. great seal, either in person or by deputy, and 


MESNE PROFITS, ACTION OF, An | Must be ready to execute all such orders as 
action of trespass bronght to recover profits he shall receive from the lord chancellor, lord 
derived from land, while the possession of it | Keeper, or lords commissioners. Brown. 
has been improperly withheld; that is, the 
yearly value of the premises. 


Messis sementem sequitur, The crop 
belongs to [follows] the gower. A maxim 

MESNE, WRIT OF. An ancient and | in Scotch law. Where a person is in posses- 
abolished writ, which lay when the lord par- | sion of land which he has reason to believe is 
amount distrained on the tenant paravail. | his own, and sows that land, he will havea 
The latter had a writ of mesne agaiust the | right to the crops, although before it is cut 
mesne lord. down it should be discovered that another 


MESNALTY, or MESNALITY. A has a preferable title to the land. Bell. 


manor held under a superior lord. The es- MESSUAGE. This term is now synon- 
Pract amesne. ymous with “dwelling-house,” but had once 
MESS BRIEF. In Danishsealaw. One | amoreextended signification. Itis frequently 
of a ship’s papers; a certificate of admeasure- | used in deeds, in describing the premises, 
ment granted at the home port of a vessel by Although the word “messuage” may, there is no 
ne ier sims Tht compete) | ee essa ca oct ace cis 
authority. Jac. Sea Laws, 51. put in saditiiniand used aynonymously. % sa 
MESSAGE FROM THE cROWN. | %: © &7. 
In English law. The method of communi- In Scotland. The principal dwelling- 
eating between the sovereign and the house | house within a barony. Bell. 


of parliament. A written message under the 
META. Lat. A goal, bound, orturning- 


point. In old English law, the term was 
used to denete a bound or boundary line of 
land; a landmark; a material object, asa tree 
or a pillar, marking the position or beginning 
of a boundary line. 


royal sign-manual is brought by a member of 
the house, being a minister of the crown or 
one ofthe royal household. Verbal messages 
are also sumetimes delivered. May, Parl. Pr. 
c. 17, 


MESSAGE, PRESIDENT’S. An an- 
nual communication from the president of 
the United States to congress, made at or near 
the beginning of each session, embodying his 
views on the state and exigencies of national 
affairs, suggestions and recommendations 
for legislation, and other matters. Const. 


pre ere =) 5. METATUS. In old European law. A 
MESSARIUS. Im old English law. A | dwelling: a seat; a station; quarters; the 
chief servant in husbandry; a bailifi. place where one lives or stays. Spelman. 


METACHRONISM,. An error in com- 
putation of time. 


METALLUM, In Romantaw. Metal; a 
mine, Labor in mines, as a punishment for 
crime. Dig. 40, 5, 24, 5; Calvin. 


METAYER SYSTEM, 


METAYER SYSTEM. A system of 
agricultural holdings, under which the land 
is divided, in small farms, among single 
families, the landlord generally supplying the 
stock which the agricultural system of the 
country is considered to require, and receiv- 
ing, in lien of rent and profit, a fixed pro- 
portion of the produce. This proportion, 
which ig generally paid in kind, is usually 
one-half. 1 Mill, Pol. Econ. 296, 363; and 
2 Smith, Wealth Nat. 8, c. ti, The system 
prevails in some parts of France and Italy. 


METECORN. A measure or portion of 
corn, given by a lord to customary tenants 
as & reward and encouragement for labor. 
Cowell. 


METEGAVEL. 
in victuals. Cowell. 


METER. An instrument of measure- 
ment; as a coal-meter, a gus-meter, a land- 
meter. 


METES AND BOUNDS. In convey- 
ancing, The boundary lines of lands, with 
their terminating points or angles. 


A tribute or rent paid 


METEWAND, or METEYARD. A 
staff of a certain length wherewith measures 
are taken. 


METHEL. Sax. Speech; discourse. 
Mathlian, tospeak; toharangue. Anc. Inst, 
¥ng. 


METHOD. In patent law. “Engine” 
and “method” mean the same thing, and 
may be the subject of a patent. Method, 
properly speaking, is only placing several 
things, or performing several operations, in 
the must convenient order, but it may sig- 
nify a contrivance or device. Fessen. Pat. 
127; 8 Term R. 106. 


METRE. The unit of measure in the 
“metric system” of weiglits and mcasures. 
It is a measure of iength, being the ten-mill- 
ionth part of the distance from the equator 
to the north pole, and equivalent to 39.87 
inches. From this unit all the other denom- 
inations of measure, aa well as of weight, 
are derived. ‘Me metric system was first 
adopted in France in 1795. 


METRIC SYSTEM. Aasystem of meas- 
ures for Jength, surface, weight, and capaci- 
ty, founded on the mctve asa unit. It orig- 
inated in France, has been established by 


law there and in some other countries, and | 
is recommended for general use by otlier 


governments, 


772 


MEUM EST PROMITTERE, ETC. 


METROPOLIS. A mother city; one 


from which a colony was sentout. The cap 
ital of a province. Calvin. 
METROPOLITAN. In English law, 


One of the titles of an archbishop. Derived 
from the circumstance that archbishops were 
consecrated at first in the meiropolis of a 
province. 4 Inst. 94. 

In England, the word is frequently used 
to designate a statute, institution, govern- 
mental agency, ete., relating exclusively or 
especially to the city of London; e¢. g., the 
metropolitan board of works, metropolitan 

| buildings act, ete. 


METROPOLITAN BOARD OF 
WORKS. A board constituted in 1855 by 
St. 18 & 19 Vict. c. 120, for the better sewer- 
ing, draining, paving, cleansing, lighting, and 
improving the metropolis (London.) The 
board is elected by vestries and district boards, 
who in their turn are elected by the rate-pay- 
ers. Wharton, 


METROPOLITAN POLICE DIS. 
TRICT. A region composed of New York 
city and come adjacent territory, which was, 
for police purposes, organized as one district, 
and provided with a police force common to 
the whole. 


METTESHEP, or METTENSCHEP. 
In old records. An acknowledgment paid in 
acertain measure of corn; or a fine or pen- 
alty imposed on tenants for default in not do- 
ing their customary service in cutting the 
lord’s corn. 


METUS. Lat. Fear; terror. Ina tech- 
nical sense, a reasonable and well-gronnded 
apprehension of some great evil, such ag 
death or mayhem, and not arising out of 
mere timidity, but such as might fali upon a 
man of courage. Fear must be of this de 
scription in order to amount to duress avoid- 
ing a contract. See Bract. lib. 2, c. 5; 1 Bl 
Comm. 131; Calyin. 


MEUBLES. In French law. The mov- 
ables of Iinglish law. Things are meudbles 
from either of two causes: (1) From their 
own nature, 6. g., tables, chairs; or (2) from 
the determination of the law, 4 g., obliga- 
tions. 


MEUBLES MEUBLANS. In French 
law. The utensils and articles of ornament 
usual in a dwelling-house. Brown. 


Meum est promittere, non dimittere. 
It is mine to promise, not to discharge. 2 
| Rolle, 89. 


MICHAELMAS 


773 


MILITARY COMMISSIONS 


MICHAFLMAS. The feastofthe Arch- | who has passed an examination and is a 


angel Michael, celebrated in England on 
the 29th of September, and one of the usual 
quarter days. 


MICHAELMAS HEAD COURT. A 
meeting of the heritors of Scotland, at which 
the roll of freeholders used to be revised. See 
Bell, 


MICHAELMAS TERM. One of the 
four terms of the English courts of common 
law, beginning on the 2d day of November 
and ending on the 25th. 3 Steph. Comm. 
562. 


MICHE, or MICH. O. Eng. To prac- 
tice crimes requiring concealment or secrecy; 
to pilfer articles secretly. dJ/icher, one who 
practices secret crime. Webster. 


MiCHEL-GEMOT. One of the names 
of the general council immemorially held in 
England. The Witenagemote. 

One of the great councils of king and 
noblemen in Saxon times. Jacob. 


MICHEL-SYWOTH. Great council. 
One of the names of the general council of the 
kingdom in the times of the Saxons. 1 Bl. 
Comm. 147. 


MICHERY. Theft; cheating. 


MIDDLE TERM. A phrase used in log- 
je to denote the term which occurs in both 
of the premises in the syllogism, being the 
means of bringing together the two terms in 
the conclusion. 


MIDDLE THREAD, The middle thread 
of a stream is an imaginary line drawn length- 
wise through the middle of its current. 


MIDDLEMAN. An agent between two 
parties, an intermediary who performs the 
ofice cf a broker or factor between seller and 
buyer, producer and consumer, land-owner 
and tenant, ete. 

A middleman, in Ireland, is a person who 
takes land in large tracts from the proprie- 
tors, and then rents it out to the peasantryin 
sinall portions at a greatly enhanced price, 
Wharton. 


MIDDLESEX, BILL OF. See BiLu or 
MIDDLESEX. 
MIDSHIPMAN. In ships of war,a kind 


of naval cadet, whose business is to second 
oriransinit the orders of the superior olfiicers 
and assist in the necessary business of the 
vessel, but understoou to be in training fora 
commission. A passed midshipman is one 


candidate for promotion to the rank of lieu- 
tenant. 


MIDSUMMER-DAY. Thesummer sol- 
stice, which is on the 24th day of June, and the 
feast of St. John the Baptist, a festival first 
mentioned by Maximus Tauricensis, A. D. 
400. It is generally a quarter-day for the 
payment of rents, ete. Wharton. 


MIDWIFE. In medical jurisprudence. 
A woman whe practices midwifery; an ac 
coucheuss. 


MIESES. In Spanish law. Crops of 
grain. White, New Recop. b. 1, tit. 7, ¢. 5, 
§ 2. 

Migrans jura amittat ac privilegia et 
immunitates domicilii prioris. One who 
amigrates will lose the rights, privileges, and 
immunities of his former domicile. Voet, 
Com. ad Pand. tom. i. 347; 1 Kent, Comm. 
76. 


MILE. <A measure of length or distance, 
containing 8 furlongs, or 1,760 yards, or 
5,280 feet. 


MILEAGE. A payment or charge, at a 
fixed rate per mile, allowed as a compensa- 
tion for traveling expenses to members of Jeg- 
islative bodies, witnesses, sheriffs, and bail- 
iffs. 


MILES. In the civil law. A soldier, 

In old English law. A knight, because 
military service was part of the feudal ten- 
ure. Alsoa tenant by military service, not 
aknight. 1 Bl. Comm. 404; Seld. Tit. Hon. 
334. 

MILITARE. To be knighted. 


MILITARY. Pertaining to war or to 
the army; concerned with war. Also the 
whole body of soldiers; an army. 


MILITARY BOUNTY LAND. Land 
granted by various laws of the United States, 
by way of bounty, to soldiers for services 
rendered in the army; being given in lieu of 
a money payment. 


MILITARY CAUSES. In English law. 


| Causes of action or injuries cognizable in the 


eourt military, or court of chivalry. 3 Bl. 
Comm. 103. 
MILITARY COMMISSIONS. Courts 


wiiose procedure and composition are modeled 
upon courts-martial, being the tribunals by 
which alleged violations of martial law are 
tried and determined. The membership of 


MILITARY COURTS 


such commissions is commonly made up of 
civilians and army officers. They are proba- 
bly not known outside of the United States, 
and were first used by General Scott during 
the Mexican war. 15 Amer. & Ing. Enc. 
Law, 478. 


MILITARY COURTS, In England 
the court of chivalry and courts-martial, in 
America courts-martial and courts of inquiry, 
are -alled by this general name. 


MILITARY FEUDS. The genuine or 
original feuds which were in the hands of 
military men, who performed military duty 
for their tenures. 


MILITARY JURISDICTION. “There 
are, under the constitution, three kinds of 
military jurisdiction,—one to be exercised 
both in peace and war; another to be exercised 
in time of foreign war without the bounda- 
ries of the United States, or in time of rebell- 
ion and civil war within states or districts 
occupied by rebels treated as belligerents; 
and a third to be exercised in time of inva- 
sion or insurrection within the limits of the 
United States, or during rebellion within the 
limits of states maintaining adhesion to the 
national government, when the public dan- 
ger requires its exercise. The first of these 
may be called ‘jurisdiction under military 
law,’ and is found in acts of congress pre- 
scribing rules and articles of war, or other- 
wise providing for the government of the 
national forces; the second may be distin- 
guished as ‘military government,’ supersed- 
ing, as far as may be deemed expedient, the 
local law, and exercised by the military com- 
mander under the direction of the president, 
with the express or implied sanction of 
congress; while the third may be denominated 
‘martial law proper,’ and is called into 
action by congress, or temporarily, when the 
action of congress cannot be invited, and in 
the case of justifying or excusing peril, by 
the president, in times of insurrection or in- 
vasion, or of civil or foreign war, within 
districts or localities where ordinary law no 
longer adequately secures public safety and 
private rights.” Per Chase, C. J., 4 Wall. 
141. 


MILITARY LAW. A system of regu- 
lations for the government of anarmy. 1 
Kent, Comm. 341, note. 

That branch of the laws which respects 
military discipline and the government of 
persons employed in the military service. 
De Hart, Mil. Law, 16. See Martian Law. 


774 


MILLEATE 


MILITARY OFFENSES. Those of- 
fenges which are cognizable by the courts 
military, as insubordination, sleeping on 
guard, desertion, ete. 


MILITARY STATE. The soldiery of 
the kingdom of Great Britain. 


MILITARY TENURES. The various 
tenures by knight-service, grand-serjeanty, 
cornage, etc., are frequently called “military 
tenures,” from the nature of the services 
which they involved. 1 Steph. Comm. 204, 


MILITARY TESTAMENT. In En- 
glishlaw. A nuncupative will, that is, one 
made by word of mouth, by which a soldier 
Inay dispose of his goods, pay, and other per- 
sonal chattels, without the iorms and solemni- 
ties which the law requires in other cases, 
St. 1 Vict. ¢. 26, § 11. 


MILITES, Knights; and, in Scotch law, 
freeholders. 


MILITIA. Thebody of soldiers ina state 
enrolled for discipline, but not engaged in 
actual service except in emergencies, as dis- 
tinguished from regular troops or a standing 
army. 


MILL. A machine or engine for grind- 
ing, sawing, manufacturing, ete.; also the 
building containing such machinery. 

An American money of account, of the 
value of the tenth part of a cent. 


MILL-HOLMS. Low meadows and 
other fields in the vicinity of mills, or watery 
places about mill-dams. Ene. Lond. 


MILLBANK PRISON. Formerly 
called the “Penitentiary at Millbank.” A 
prison at Westminster, for convicts under 
sentence of transportation, until thesentence 
or order shal! be executed, or the convict he 
entitled to freedom, or be removed to some 
other place of confinement. This prison is 
placed under the inspectors of prisons ap- 
pointed by the secretary of state, who area 
body corporate, “The Inspectors of the Mill- 
bank Prison.” The inspectors make regula- 
tions for the government thereof, subject to 


the approbation of the secretary of state, and 


yearly reports to him, to be laid before par- 
liament. The secretary also appoints a gov- 
ernor, chaplain, medical officer, matron, ete. 
Whatton. 


MILLEATE, or MILL-LEAT. A 
trench to convey watertoor froma mill. St. 
@ Jac ie ce 19: 


MILLED MONEY 


MILLED MONEY. This term means 
Merely coined money; and it is not necessary 
that it should be marked or rolled on the 
edges. Leach, 708. 


MIL-REIS. The name of a piece of 
money in the coinage of Portugal, and the 
Azores and Madeira islands. Its value at the 
custom-house, according as it is coined in the 
first, second, or third of the places named, is 
$1.12, or 83} cents, or $1. 


MINA. Inold English law. A measure 
of corn or grain. Cowell; Spelman. 


MINAGE. 
Ing cori by the mina. 


MINARE. 
dig mines. 


A toll or duty paid for sell- 
Cowell. 


To mine or 
Cowell. 


In old records. 
Minator, a miner. 


MINATOR CARUCA. 
Cowell. 


A plowman. 


Minatur innocentibus qui parcit no- 
centibus. 4 Coke, 45. Hethreatens the in- 
nocent who spares the guilty. 


MIND. In its legal sense, “mind” means 
only the ability to will, to direct, to periit, 
or to assent. In this sense, a corporation 
has a mind, and exerts its mind each time 
that it assents to the terms of a contract. 43 
N. J. Law, 492. 


MIND AND MEMORY. A phrase ap- 
plied to testators, denoting the possession of 
mental capacity to make a will. In order to 
make a valid will, the testator must have 
asound and disposing mind and memory. 
In other words, he ought to be capable of 
making his will, with an understanding of 
the nature of the business in which he is en- 
gaged, a recollection of the property he 
means to dispose of, of the persons who are 
the objects of his bounty, and the manner 
in which it is to be distributed between them. 
3 Wash. C. ©. 585. 


MINE. A pit or excavation inthe earth, 
from which metallic ores or other mineral 
substances are taken by digging. Webster. 


MINER. One who mines; a digger for 
metals and other minerals. While men of 
scientilicattainments, or of experience in the 
use oi machinery, are to be found in this 
Ziass, yet the word by which the class is des- 
ignated imports neither learning nor skill. 
{Colo.) 19 Pac. Rep. 604. 


MINERALS. All fossil bodies or mat- 
ters dug out of mines or quarries, whence 


775 


ee ee 


MINISTER 


anything may be dug; such as beds of stone 
which may be quarried. 14 Mees. & W. 859. 

Any natural production, formed by the ac- 
tion of chemical affinities, and organized 
when becoming solid by the powers of crys- 
talization. Webster. 


MINERATOR. 
miner, 


In old records. A 


Minima pena corporalis: est major 
qualibet pecuniaria. The smallest corpo- 
ral punishment is greater than any pecuniary 
one. 2 Inst. 220. 


Minime mutanda sunt que certam 
habuerunt interpretationem. Things 
which haye had a certain interpretation 
[whose interpretation has been settled, as by 
common opinion] are not to be altered. Co. 
Litt. 365; Wing. Max. p. 748, max. 202. 


MINIMENT. An old form of muniment, 
(9. 2.) Blount. 


Minimum est nihilo proximum. The 


smaliest is next to nothing. 


MINING CLAIM. A parcel of land, 
containing precious metal in its soil or rock, 
and appropriated by an individual, according 
to established rules, by the process of “loca- 
tion.” 104 U.S. 649. 


MINING COMPANIES. This desig- 
nation was formerly applied in England to 
the associations formed in London in 1828 
for working mines in Mexico and South 
America; but ab present it comprises, both 
in England and America, all mining projects 
carried on by joint-stock associations or cor 
porations, Rapalje & Lawrence, 


MINING PARTNERSHIP. An asso 
sociation of several owners of a mine for co- 
operation in working the mine. A mining 
partnership is governed by many of the rules 
relating to ordinary partnerships, but alse 
by some rules peculiar toitself, one of which 
is that one. person may convey his interest 
in the mine and business without dissolving 
the partnership. 102 U. 8.645; 23 Cal. 203; 
9 Colo. 46, 10 Pac. Rep. 232. 


MINISTER. In public law. One 
of the highest functionaries in the organiza- 
tion of civil government, standing next to 
the sovereign or executive head, acting as 
his immediate auxiliary, and being generally 
charged with the administration of one of 
the great bureaus or departments of the ex- 
ecutive branch of government. Otherwise 


MINISTER 


called a “eabinet minister,” “secretary of 
state,” or “secretary of a department.” 

In international law. An officer ap- 
pointed by the government of one nation as 
a mediator or arbitrator between two other 
nations who are engaged in a controversy, 
with their consent, with a view to effecting 
an amicuble adjustment‘of the dispute. 

A general name given to the diplomatic 
representatives sent by one state to another, 
including ambassadors, envoys,and residents, 

In ecclesiastical law. A person ordained 
according to the usages of some cliurch or 
associated body of Christians for the preach- 
ing of the gospel and filling the pastoral of- 
fice. 


In practice. An officer of justice, 
charged with the execution of the law, and 
hence termed a “ministerial officer;” such as 
a& shoriff, bailiff, coroner, sheriff’s cilicer. 
Britt. c. 21. 

An agent; one who acts not by any inher- 


ent authority, but under another. 
3 


MINISTERIAL. That which {s done 
under the authority of a superior; opposed to 
judicial; that which involves obedience to 
instructions, but demands no special discre- 
tion, judgment, or skill. 


MINISTERIAL ACT. A ministerial act 
may be defined to be one which a person per- 
forms ina given state of facts, in a prescribed 
manner, in obedience to the mandate of legal 
authority, without regard to or the exercise 
of his own judgment, upon the propriety of 
the act being done. Acts done out of court 
in bringing parties into court are, as a gen- 
eral proposition, ministerial acts. 54 Ind. 
376. 


MINISTERIAL POWERS. A phrase 
used in English conveyancing to denote 
powers given for the good, not of the donee 
himself exclusively, or of the donee himself 
necessarily at all, but for the good of several 
persons, jncluding or notincluding thedonee 
algo. They are so called because the donee 
of them is as a minister or servant in his 
exercise of them. Brown. 


MINISTERIAL TRUSTS. (Also 
called “instrumental trusts.”) Those which 
demand no further exercise of reason or un- 
derstanding than every intelligent agent 
must necessarily empigr; as to convey an ed 
tate. They are a species of special trusts, 
distinguished from discretionary trusts, 
which necessarily require much exercise of 
the understanding. 2 Bouv. Inst. no. 1896. 


776 


MINOR QUI INFRA, ETC. 


MINISTRANT. The party cross-exam- 
{ning a witness was so called, under the old 
system of the ecclesiastical courts, 


MINISTRI REGIS. Lat. In old En- 
glish law. Ministers of the king, applied te 
the judges of the realm, and to all thoge who 
hold ministerial offices in the government, 
2 Inst. 208. 


MINISTRY. Office; service. Those 
members of the government who are in the 
cabinet. 


MINOR, An infant or person who is 
under the age of legal competence. A 
term derived from the civil law, which de- 
scribed a persun under 4 certain age as less 
than 30 many years. Minor viginti quinque 
ants, one less than twenty-five years of age. 
Inst. 1, 14, 2. 

Also, less; of less consideration; lower; a 
person of inferior condition, Fleta, 2, 47, 
13, 15; Calvin. 


MINOR ATAS. 
fancy. 


Lat. Minority or in- 
Cro. Car. 516. Literally, lesser age. 


Minor ante tempus agere non potest 
in casu proprietatis nec etiam conve- 
nire; differetur usque setatem; sed non 
cadit breve. 2Inst. 291. A minor before 
majority cannot actin a case of property, nor 
even agree; it should be deferred until ma- 
jority; but the writ does not fail. 


MINOR FACT. In the law of evidence, 
A relative, collateral, or subordinate fact; a 
circumstance. Wills, Cire. Ev. 27; Burrill, 
Cire. Evy. p. 121, note, 582. 


Minor jurare non potest. A minor can- 
not make oath. Co. Litt. 1726. An infant 
cannot besworn on ajury. Litt. 289. 


Minor minorem custodire non debet, 
alios enim presumitur male regere qui 
seipsum regere nescit. A minor ought 
not to be guardian to a minor, for he who 
knows not how to govern himself is presumed 
to be unfit to govern others. Fleta, lib. 1, ¢. 
10; Co. Litt. 880. 


Minor non tenetur respondere durante 
minori state, nisi in causa dotis, propter 
favorem. 38 Bulst. 143. A minor is not 
bound to reply during his minovity, except 
as a matter of favor in acause of dower. 


Minor qui infra wtatem 12 annorum 
fuerit ultagari non potest, nec extra le- 
gem poni, quia ante talem statem, non 
est sub lege aliqua, nec in decenna. Co. 
Litt. 128. A minor who is under twelve 


MINOR SEPTEMDECIM, ETC. 


years of age cannot be outlawed, nor placed 
without the law, because before such age he 
is not under any law, nor in a deceunary. 


Minor septemdecim annis non admit- 
titur fore executorem. A person under 
seventeen years is not admitted to be an ex- 
eculur. 6 Coke, 67. <A rule of ecclesiasti- 
eal law. 


MINORA REGALIA. In English law. 
The lesser prerogatives of the crown, includ- 
ing the tights of the revenue. 1 131. Comm. 
241. 


MINORITY. The state or condition of 
a minor; infancy. 

The smailer number of votes of a delibera- 
tive assembly; opposed to majority, (which 
see. } ; 


MINT. The place designated by law 
where bullion is coined into money under au- 
thority of the government. 

Also a plaice of privilege in Southwark, 
near the queen’s prison, where persons for- 
merly sheftered themselves trom justice un- 
der the pretext that it was an ancient palace 
of the crown. ‘the privilege is now abol- 
ished, Wharton, 


MINT-MARK. The masters and work- 
ers of the English mint, in the indentures 
made with them, agree “ta make a privy 
mark in the money they make, of gold and 
silver, so that they may know which moneys 
were of theirown making.” After every trial 
of the pix, having proved their moneys to be 
lawful, they are entitled to their qutéefus un- 
der the great seal, and to be discharged from 
all suits or actions. Wharton. 


MINT-MASTER. One who minages the 
coinuge. See MASTER OF THE MINT. 


MINTAGSE. The charge or commission 
taken by the mint as a consideration for coin- 
ing into money the bullion which is brought 
to it for that purpose; thesameas “scignior- 
age.” 

Also that which is coined or stamped as 
money; the preduct of the mint. 


MINUS. Eat. Inthe civil law. Less; 
less than, The word had also, in some con- 
nections, the sense of “not at all.” For ex- 
ampie, a debt remaining wholly unpaid was 
described as “ainus solutum.” 


Minus solvit, qui tardius solvit. He 
docs not pay who pays too late. Dig. 50, 16, 
12, L 


777 


MISAPPROPRIATION 


MINUTE. In measires of time er cir- 
cumference, a minute is the sixtieth part of 
an hour or degree. 

In practice. A memorandum of what 
takes place in court, made by authority of the 
court. 


MINUTE-BOOE. <A book Kept by the 
elerk or prothonotary of a court for entering 
memoranda of its proceedings. 


MINUTE TITHES. Small tithes, such 
as usually belong te a vicar, as of wool, 
lambs, pigs, butter, cheese, herbs, seeds, eggs, 
honey, wax, etc. 


MINUTES. In Scotch practice. A 
pleading put into writing before the lord or- 
dinary, as the ground of his judgment. Bell. 

In business law, Memoranda or notes 
of a transaction or proceeding. Thus, the 
record of the proceedings at a meeting of di- 
rectors or shareholders of a company is called 
the “minutes.” 


MINUTIO, Inthe civillaw. A lessen- 
ing; diminution or reduction. Dig. 4, 5, 1. 


MIRROR. The Mirror of Justice, or of 
the Justices, commonly spoken of ag the 
“Mirror,” is an ancient treatise on the laws 
of England, written during the reign of 
Edward II., and attributed to one Andrew 
Horne. 


MIS. An inseparable particle used in 
eonposilion, to mark an ill sense or deprava- 
tion of the meaning; as “misecomputation” or 
“misaccompting,” t. é., false reckoning. Sev- 
era] of the words following are illustrations 
of the force of this monosyllable. 


MISA. In old English law. The mise 
or issue in a writ of right. Spelman. ' 

In old records. A compact or agree- 
ment; a form of compromise. Cowell. 


MISADVENTURE. A mischance or 
accident; a casualty caused by the act of one 
person and inflicting injury upon another. 
Homicide “by misadventure” is wherea man, 
doing a lawful act, without any intention of 
hurt, unfortunately kills another. 4 Bi. 
Comin. 182. 


MISALLEGE. To cite falsely as a proof 
or argument. 


MISAPPLICATION. Improper, illegal, 
wrongiul, or corrupt use or application of 
funds, property, etc. 


MISAPPROPRIATION. This is not 
a technical term of law, but iLis sometimes 


MISBEHAVIOR 


778 


MISF 


applied to the misdemeanor which is com- | attorney at law, (1 Denio, 267,) or a public 


mitted by a banker, factor, :gent, trustee, 
ete., who fraudulently deals with money, 
goods, securities, ete., intrusted to him, or 
by a director or public officer of a corporation 
or company who fraudulently misapplies any 
of its property. Steph.Crim. Dig. 257, et seq. 
Sweet, 


MISBEHAVIOR. Ill conduct; improper 
or unlawful behavior. Verdicts are some- 
times setaside on the ground of misbehavior 
of jurors. 


MISCARRIAGE. In medical juris- 
prudence. The expulsion of the ovize or 
embryo from the wteruws within the first six 
weeks after conception. Between that time, 
and before the expiration of the sixth month, 
when the child may possibly live, itis termed 
“abortion.” When the delivery takes place 
soon after the sixth month, it is denominated 
“premature labor.” But the criminal act of 
destroying the fetus at any time before birth 
is termed, in law, “procuring miscarriage.” 
Chit. Med. Jur. 410. 

In practice. As used in the statute of 
frauds, (“debt, default, or miscarriage of 
another,”) this term means any species of 
unlawful conduct or wrongful act for which 
the doer could be held liable in a civil action. 


MISCEGENATION. Mixture of races; 
marriage between persons of different races; 
as between a white person and a negro. 


MISCHARGH. An erroneous charge; a 
charge, given by a court toa jury, which in- 
volves errors for which the judgment may 
be reversed. 


MISCHIEF. In legislative parlance, the 
word is often used to signify the evil or dan- 
ger which a statute is intended to cure or 
avoid. 

In the phrase “malicious mischief,” (which 
see,) it imports a wanton or reckless injury 
to persons or property. 


MISCOGNISANT. Ignorant; 
formed. The word is obsolete, 


unin- 


MISCONDUCT. Any unlawful conduct 
on the part of a person concerned in the ad- 
ministration of justice which is prejudicial 
to the rights of parties or to the right deter- 
Mination of the cause; as “misconduct of ju- 
rors,” “misconduct of an arbitraiZr.” The 
term is also used to expressa dereliction from 
duty, injurious to another, on the part of one 
employed in a professiona)] capacity, as an 


officer, (60 Me. 58.) 


MISCONTINUANCE. In practice. An 
improper continuance; want of proper form 
in a continuance; the same with “discontin- 
uanee.” Cowell. 


MISCREANT. In old English law. An 
apostate; an unbeliever; one who totally re- 
nounced Christianity. 4 Bl. Comm. 44. 


MISDATE. A faise or erroneous date 
affixed to a paper or document. 


MISDELIVERY. The delivery of prop- 
erty by a carrier or warehouseman to a per- 
son not authorized by the owner or person to 
whom the carrier or warehouseman is bound 
by his contract to deliver it. 133 Mass, 156, 


MISDEMEANANT. A person guilty of 
a misdemeanor; one sentenced to punish- 
ment upon conviction of a misdemeanor. 
See First-Class MISDEMEANANT. 


MISDEMEANOR. Incriminal law. A 
general name for criminal offenses of every 
sort, punishable by indictment or special 
proceedings, which do not in luw amount to 
the grade of felony, 

A misdemeanor is an act committed or omitted 
in violation of a public law either forbidding or 
commanding it. This general definition, however, 
comprehends both “crimes” and “misdemeanors,” 
which, properly speaking, are mere synonymous 
terms; though, in common usage, the word 
“crimes” is made to denote such offenses as are of 
adeeper and mre atrocious dye; while smaller 
faults and omissions of Jess consequence are com- 
prised under the milder term of “misdemean- 
ors” only. In the English law, “misdemeanor” is 
generally usedin contradistinction to“felony; "and 
misdemeanors comprehend all indictable offenses 
which do not amount to felony, as libels, conspir 
acies, attempts, and solicitations to commit fel- 
onies, etc. Brown. 


MISDESCRIPTION. An erroror falsi- 
ty in the description of the subject-matter of 
acontract which deceives one of the parties 
to his injury, or is misleading in a material 
or substantial point. 


MISDIRECTION. In practice. An er 
ror made by a judge in instructing the jury 
upon the trial of a cause. 


MISE. The issue in a writ of right. 
When the tenant in a writ of right pleads 
that his title is better than the demandant’s, 
he is said to join the mise on the mere right. 

Also expenses; costs; disbursements in an 
action. 


MISE-MONEY i 


MISH-MONEY. Money paid by way of 
contract or composition to purchase any lib- 
erty, ete. Blount. 


Misora est servitus, ubi jus est vagum 
aut incertum. It is a wretched state of 
slavery which subsists where the law is vague 
eruncertain. 4Inat.245; Broom, Max. 150. 


MISERABILE DEPOSITUM. Lat. in 
the civillaw. The name of an involuntary de- 
posit, made under pressing necessity; as, for 
instance, shipwreck, fire, or other inevitable 
calamity. Poth. Proc. Civile, pt. 5, ¢. 1, § 1; 
Code La. 2935, 


MISERERE. The name and first word 
of one of the penitential psalms, being that 
which was commonly used to be given by the 
ordinary to such condemned malefactors 2s 
were allowed the benefit ofelergy; whence it 
is also called the “psalm of merey.” Whar- 
ton, 


MISERICORDIA. Mercy; a fine or 
amerciament; an arbitrary or discretionary 
amercement. 


MISERICORDIA COMMUNIS. In 
old English law. A fine set on a whole 
county or hundred. 


MISFEASANCE. A misdeed or tres- 
pass. The doing what a party ought to do 
improperly, 1 Tidd, Pr. 4. The improper 
performance of some act which a man may 
lawfully do. 3 Steph. Comm. 460. 


Misfeasanece, strictly, is not doing a lawful act 
in a proper manner, omitting to do it as it should 
be done; while malfeasance is the doing an act 
wholly wrongful; and aon-feasance is an omission 
to perform a duty, or a total neglect of duty. But 
“mmisfeasauce” is often carelessly used in the sense 
of “malfeasance.” 83 Conn. 109. 


MISFEAZANCH. See MisrmasANor. 


MISFORTUNE. An adverse event, 
calamity, orevil fortune, arising by accident, 
(or without the will or concurrence of him 
who suffers from it,) and not to be foreseen 
or guarded against by care or prudence. See 
20 Q. B, Div. 316. In its application to the 
law of homicide, this term always involves 
the further idea that the person causing the 
death is not at the time engaged in any un- 
lawful act. 4 BL Comm. 182, 


MISJOINDER. The improper foining 
together of partics to a suit, as plaintiffs or 
defendants, or of diiferent causes of action, 


MISKENNING. In Saxon and old En- 
glish law, An unjust or irreguiar summon- 
ing to court; fo speak unsteadily in court; to 


(ae) MISREADING 


vary in one’s plea. Cowell; Blount; Spel- 
man. 


MISLAY. To deposit in a place not aft- 
erwards recollected; to loses anything by for« 
getfulness of the place where it was laid. 


MISLEADING. Delusive; calculated te 
lead astray or to lead into error. Instruc- 
tions which are of such a nature as to be 
misundersivod by the jury, or to give them 
a wrong impression, are said to be “ mislead- 
ing.” 


MISNOMER. Mistake in name; the giv- 
ing an incorrect name to # person in a 
pleading, deed, or other instrument. 


MISPLEADING. Pleading incorrectly, 
or omitting anything in pleading which is es- 
sential to the support or defense of an action, 
is so called; as in the ease of a plaintiff not 
merely stating his title ina defective manner, 
but setting forth a title wlich is essentially 
defective in itself; or if, to an action of debt, 
the defendant pleads “not guilty” instead of 
nil debet. Brown. 


MISPRISION. Incriminallaw. A term 
used to signify every considerable misde- 
meanor which has not a certain name given 
to it by law. 3 Inst. 36. 

Neglect or light account made of a crime; 
omission to reveal it. “Misprision of trea- 
son” is the bare knowledge and concealment 
of treason, without any decree of assent 
thereto, for any assent makes the party a 
principa: traitor, 451, Comm. 120; 4 Steph. 
Comm. 200. “Misprision of felony” is the 
concealment of a felony committed by an- 


| other, without such previous concert with 


or subsequent assistance of the latter as will 
make the party concealing an accessary be- 
fore or after the fact. 4S5teph. Comm. 260, 
These are “misprisions,” in the proper sense 
of the term, Contempts and high misde 
meanors were formerly termed “positive mis- 
prisions.” 4 B], Comm. 121, 

Misprisions of clerks are mistakes made by 
clerks, etc., in writing or keeping records, 


MISPRISION OF TREASON. Mia- 
prision of treason is the knowledge and con- 
cealment of treason, without otherwise as. 
senting to or participating in thecrime, Pen, 
Code Cal. § 338. 


MISREADING. Reading adeed or 
other instrument to an fliiterate or blind 
man (who is a party to it) in a false or de- 
ceitful manner, 80 that he conceives a wreng 


MISRECITAL 
idea of its tenor or contents. Sea 5 Coke, 
19: 6 Fast, 309; 2 Jolmns. 404. 


MISRECITAL. The erroneous or incor- 
rect recital of a matter of fact, either in an 
agreement, deed, or pleading. 


MISREPRESENTATION. An inten- 
tional false statement respecting a mat- 
ter of fact, made by one of the parties to 
a eontract, which is material to the con- 
tract and influential in producing it, 29 N. 
J. Hq. 262. 

Faise or fraudulent misrepresentation is a 
representation contrary to the fact, made by 
aperson with a knowledge of its falsehooi, 
and being the cause of the other party’s en- 
tering into the contract. 6 Clark & F. 232. 

Negligent misrepresentation is a false rep- 
resentation made by a person who has no 
reasonable grounds for believing it to be true, 
though he does not know that itis untrue, 
or eyon believes it to be true. L. R.4 H.L. 
rely 

dnnocent misrepresentation is where the 
person making the representation had rea- 
sonable grounds for believing it to be true. 
L. RB. 2 Q. B. 580. 


MISSA. The mags. 


MISSZ2 PRESBYTEH. A priest in or- 
ders. Blount. 


MISSAL. The mags-bock. 


MISSILIA,. In Roman law. Gifts or lib- 
eralities, which the pretors and consuls were 
in the habit of throwing among the people. 
Inst. 2, 1, 45. 


MISSING SHIP. In maritime law. A 
vessel ig so called when, computed from her 
known day of sailing, the time that has 
elapsed exceeds the average duration of simi- 
lar voyages at the same season of the year, 
2 Duer, Ins. 469, 


MISSIO. Lat. Inthecivillaw. 
ing or putting. Jfissto in bona, a putting 
the creditor in possession of the debtor’s prop- 
erty. Mackeld. Rom. Law, § 521, 
judicum in consiiium, & sending out of the 
judices (or jury) to make up their sentence. 
Halifax, Civil Law, b. 3, ¢. 13, no. 31. 


MISSIVES. In Scotch law. Writings 
pissed between parties as evidence of a trans- 
action, Bell. * 


MISSTAICUS. 
senger, 


In old records. A mes- 


780 


A send- | 


Hissio | 


MITIGATION 


MISTAKE. Some unintentional act, 
omission, or error arising from ignorance, sur- 
prise, imposifion, or misplaced confidenée. 
Code Ga. § 8117; 1 Story, Eq. Jur, § 110. 

That result of ignorance of law or fact 
which has misled a person to commit that 
which, if he bad not been in error, he would 
not have done. Jeremy, Eq. Jur. 358. 

A mistake exists when a person, under 
some erroneous conviction of law or fact, 
does, or omits to do, some act which, but for 
the erreneous conviction, he would not have 
dene or omitted. It may arise either from 
unconsciousness, ignorance, forgetfulness, 
imposition, or misplaced confidence. Disph. 
Eg. § 185. 

Mistake af fact is a mistake not caused by the 
neglect of a legal duty on the part of the person 
maxing the mistake, and consisting in (1) an up- 
conscious ignorance or forgetfulness of a fact, past 
or present, material to the contruct; or (2) belief 
in the present existence of a thing material to the 
contract which does not exist, or in the past ex- 
istence of such a thing which has not existed, 
Civil Code Cal. § 1577. 

A misicke of law bappens when a party, having 
Tull knowledge of the facts, comes to an erroneous 
conclusion as to their legaleffect. Itisa mistaken 
opinion or inference, arising from an imperfect or 
incorrect exercise of the judgment, upon facts ag 
they really are; and, like a correct opinion, which 
is law, necessarily presupposes that the person 
forming it is in full possession of them, The facta 
precede the law, and the true and false opinion 
alike imply an acquaintance with them. Neither 
can exist without iit. The one is the result of a 
eorrect application to them of legal principles, 
which every man is presumed to know, and is 
called “law;” the other, the result of a faulty ap- 
plication, and is called a “mistake of law.” 12 
Wis. 124. 

Mutual mistake is where the parties have a 
common intention, but it is induced by a common 
or mutual mistake, 


MISTERY. A tradeorcalling. Cowell. 


MISTRESS. The proper style of the wife 
,of an esquire or a gentleman in England. 


MISTRIAL. An erroneous, inyalid, or 
nugatory trial; atrial of an action which can- 
not stand in law because of want of jurisdic. 
tion, or a wrong drawing of jurors, or disre- 
gard of some other fundamental requisite. 


MISUSER. Abuse of an ollice or fran- 
chise. 2 Ll. Comm. 153. 


MITIGATION. Alleviation; abatement 
or diminution of a penalty or punishment im- 
posed by law. “Mitigating circumstances” 
are such as do not constitute a justification 
or excuse of the offense in question, but 
which, in fairness and merey, muy be con- 


r 


MITIGATION OF DAMAGES 


sidered as extenuating or reducing the degree 
of moral culpability. 


MITIGATION OF DAMAGES. A re- 
duction of the amount of damages, not by 
proof of facts which are a bar to a part of the 
plaintifi’s cause of action, or a justification, 
nor yet of facts which constitute a cause of 
action in favor of the defendant, but rather 
facts which show that the plaintiff's conceded 
cause of action does not entitle him to so large 
an amount as the showing on his side would 
otherwise justify the jury in alowing him, 
1 Suth. Dam. 226. 


MITIOR SENSUS. Lat. The more 


favorable acceptation. 


Mitius imperanti melius paretur. The 
more mildly one conimands, the better is he 
obeyed. 3 Inst. 24. 


MITOYENNETE. In French law. The 
joint ownership of two neighbors in a wall, 
dilch, or hedge which soparates their estates. 


MITTENDO MANUSCRIPTUM PEH- 
DIS FINIS. An abolished judicial writ ad- 
dressed to the treasurer and chamberlain of 
the exchequer to search for and transmit the 
foot of u fine acknowledged before justices in 
eyre into the common pleas. Reg. Orig. 14. 


MITTER. L. Fr. ‘To put, to send, or to 
piss; as, mitter l’estate, to pass the estate; 
mitier le droit, to pass aright. These words 
are used to distinguish diiferent kinds of re 
leases. 


MITTER AVANT. L.Fr. In old prac- 
tice. To put before; to present before a 
court; to produce in court. 


MITTIMUS. In English law. A writ 
used in sending a record orits tenor from one 
court to another. Tis, where a nel tied ree- 
ord is pleaded in one court to the record of 
another court of equal or superior jurisdic- 


tion, the tenor of the record is brought into | 


chancery by a certiorari, (q. v.,) and thence 
sent by mittimus into the court where the 
action is. Tidd, Pr. 745. 

In eriminal practice. The name of a 
precept in writing, issuing from a court or 
magistrate, directed to the sheriff or other 
officer, commanding him to convey to the 
prison the person named therein, and to the 
jailer, commanding him to receive and safely 
keep such person until he shall be delivered 
by due course uf law. Pub. St. Mass. 1882, 
p. 1298. 


- 


781 


MIXED POLICY | 


MIXED ACTION. An uction partaking 
of the twofold nature of real and personal 
actions, having for its object the demand and 
restitution of real property and also personal 
damages fora wrong sustained. 3861. Comm. 
118. . 

Mixed actions are those which are brought for 
the specific recovery of lands, like real actions, 
but comprise, joined with this claim, one for dam- 
ages in respect of such property; such as the ac- 
tion of waste, where, in addition to the recovery 
of the place wasted, the demandant claims dam- 
ages; the writ of entry, in which, by statute, a de- 
mand of mesne profits may be joined; aud dower, 
in which a claim for detention may be included. 
45 Me. 255. 

In the civil law. An action in which 
some specific thing was demanded, and alsc 
some personal obligation claimed to be pev- 
formed; or, in other words, an action which 
proceeded both it rem and in personam. 
Inst. 4, 6, 20. 


MIXED CONTRACT. Inthecivillaw. 
A contract in which one of the parties con- 
fers a benefit on the other, and requires of 


| the latter something of less value than what 


he has given; a3 a donation subject to a 
charge. Poth, Obl. no. 12. 


MIXED GOVERNMENT. A form of 
government combining some of the features 
of two or all of the three primary fori, viz., 
moniurehy, aristocracy, and democracy. 


MIXED JURY. A bilingual jury; a ju- 
ry of the half-tongue. See Dre MepirraTs 
LINGUZ. 

Also a jury composed partly of negroes and 
partly of while men. 


MIXED LARCENY. Otherwise called 
“compound” or “complicated larceny;” that 
which is attended with circumstances of ag- 
gravation or violence to the person, or taking 
from a house. 


MIXED LAWS. A name sometimes 
given to those which concern both persons 
and property. 


MIXED MARRIAGE. A marriage be- 
tween persons of different nationalities; or, 
more particularly, between persons of differ- 
ent racial origin; as between a white person 
and a negro oran Indian. 


MIXED PERSONALTY. 
sonalty. 

MIXED POLICY. A policy of marine 
insurance in which not only the timeis spec- 


ified for which the risk is limited, but the 
yoyage also is described by its local termini; 


Impure per 


- 
MIXED PRESUMPTIONS 


as opposed to policies of insurance for a par- 
ticular voyage, without any limits as to time, 
and also to purely time policies, in which 
there is no designation of locai terminiat all. 
Mozley & Whitley. 


MIXED PRESUMPTIONS. Presump- 
tions partaking of the nature both of pre- 
sumptions of law and presumptions of fact; | 
i. e., presumptions of fact recognized by law. 


MIXED PROPERTY. Property which 
is personal in its essential nature, but is in- 
vested by the law with certain of the charac- 
teristics and features of real property. Heir- 
looms, tombstones, monuments in a church, 
and tiile-deeds to an estate are of this nature. 
2 Bl. Comm, 428; 3 Barn. & Adol. 174; 4 
Bing. 106. 


MIXED QUESTIONS. This phrase 
May mean cither those which arise from the 
conflict of foreign and domestic laws, or 
questions arising on a trial involving both 
law and fact. 


MIXED SUBJECTS OF PROPERTY. 
Such as fall within the definition of things 
real, but which are attended, nevertheless, 
with some of the legal qualities of things 
personal, as emblements, fixtures, and shares 
in public undertakings, connected with land. 
Besides these, there are others which, though 
things personal in point of definition, are, 
in respect of some of their legal qualities, 
of the nature of things real; such are animals 
Sere nature, charters and deeds, court rolls, 
and other evidences of the land, together 
with the chests in which they are contained, 
ancient family pictures, ornaments, tomb- 
stones, coats of armor, with pennons and oth- 
er ensigns, and especially heir-looms. Whar- 
ton. 


MIXED TITHES. In ecclesiastical law. 
Those which arise not immediately from the 
ground, but from those things which are 
nourished by the ground, e. g., colts, chick- 
ena, calves, milk, eggs, ete. 3 Burn, Ecc. 
Law, 380; 2 Bl. Comm. 24. 


MixED WAR. A mixed war is one | 
which is made on one side by public author- | 
ity, and on the other by mere private per- 
sons. 1 Hill, 377, 4165. 


MIXTION, The mixture or confusion 
of goods or chattels belonging severally to | 
different owners, in such a way that they , 
can no longer be separated or distinguished; 
as where two measures of wine belonging 


782 


| lation of justifiable defense. 


MODERATA MISERICORDIA 


to different persons are poured together into 
the same cask. 


MIXTUM IMPERIUM. Lat. In old 
English law. Mixed authority; a kind of 
civil power. A term applied by Lord Hale 
to the “power” of certain subordinate civil 
magistrates as distinct from “jurisdiction.” 
Hale, Anal. § 11. 


MOB. An assemblage of many people, 
acting in a violent and disorderly manner, 
defying the law, and committing, or threat- 
ening Lo commit, Jepredations upon property 
or violence to persons, 

The word, in legal use, is practically syn- 
onymous with “riot,” but the jatter is the 
more correct term. 


MOBBING AND RIOTING. In Scotch 
law. A general term ineluding all those 


| convocations of the lieges for violent and un- 


lawful purposes, which are attended with in- 
jury to the persons or property of the lieges, 
or terror and alarm to the neighborhood in 
which it takes place. The two phrases are 
usually placed together; but, nevertheless, 
they have distinct meanings, and are some- 
times used separately in legal language, the 
word “mobbing” being peculiarly applicable 
to the unlawful assemblage and violence of 
a number of persons, and that of “rioting” 
to the outrageous behavior of a single indi- 
vidual. Alis. Crim. Law, c. 23, p. 509. 


MOBILIA. Lat. Movables; movable 
things; otherwise called “res mobiles.” 


Movables. 
4 Johns, 


Mobilia non habent situm. 
have no situs or local habitation. 
Ch. 472, 


Mobilia sequuntur personam. 
ables follow the [law of the] person. 
Confl, Law, § 378; Broom, Max, 522. 


MOCKADOES. A kind of cloth madein 
England, mentioned in St. 23 Eliz. e. 9. 


MODEL. A pattern or representation of 
something tobe made. <A jac simile of some- 
thing invented, made on a reduced seale, in 
compliance with the patent laws. 


MODERAMEN 
THLA. Lat. 


Mov. 
Story, 


INCULPATA TU- 
In Roman law. The regu- 
A term used to 
express that degree of force in defense of the 
person or property which a person might 
safely use, although it should occasion the 
death of the aggressor. Calvin.; Bell. 


MODERATA MISERICORDIA. A 
writ founded on Magna Charta, which les 


MODERATE CASTIGAVIT 


for him who is amerced in a court, not of 
record, for any transgression beyond the qual- 
ity or quantity of theoffense. Itis addressed 
to the lord of the court, or his bailiff, com- 
wanding him totakea moderate amerciament 
of the parties. New Nat. rey. 167; Fitzh. 
Nat, Brey. 76. 


MODERATE CASTIGAVIT. Lat. In 
pleading. He moderately chastised. The 
name of a plea in trespass which justifies an 
alleged battery on the ground that it con- 
sisted ina moderate chastisement of the plain- 
tiff by the defendant, which, from their re- 
intions, the latter had a Jegal right te inilict. 


MODERATH SPEED. In admiralty 
law. As applied to a steam-vessel, “such 
speed only is moderate as will permit the 
steamer reasonably and effectually to avoid a 
collision by slackening speed, or by stopping 
and reversing, within the distance at which 
40 approxching vesselcan beseen.” 35 Fed. 
Rep. 609; 39 I'ed. Rep. 480, 


MODERATOR. A chairman or presi- 
dent of an assombly. A person appointed to 
preside at a popular meeting. The presiding 
officer of town-mectings in New England is 
80 called. 


MODIATIO. In old English law. A 
certain duty paid for every tierce of wine. 


Modica circumstantia facti jus mutat. 
A smali circumstance attending an act may 
change the law. 


MODIFICATION. Achange; analtera- 
tion which introduces new elements into the 
details, or cancels some of them, but leaves 
the general purpose and effect of the subject- 
matter intact, 


“Modification” is not exactly synonymous with 
“amendment,” for tha former term denotes some 
minor change in the substance of the thing, with- 
out reference to its improvement or deterioration 


thereby, while tha latter word imports an ameli- | 


oration of the thing (as by changing the phrase- 
ology of an instrument, so as to make it more dis- 
tinct or specific) without involving the idea of any 
change iz substance or essence. 

In Seotch law. The term usually ap- 
plied to the deeree of the teind court, award- 
ing asuiltable stipend to the minister of a 
parish. Bell. 


MODIFY. To alter; to change in inci- 
dental or subordinate features. 


MODIUS. A measure, usually a bushel. 


783 


MODUS ET CONVENTIO, ETC. 


MODIUS TERRA VEL AGRI. In 
old English law. A quantity of ground con- 
taining in length and breadtii 100 feet. 


MODO ET FORMA, In manner and 
form. Words used in tie old Latin forms of 
pleadings by way of traverse, and literally 
transluted in the modern precedents, import. 
ing that the party traversing denies the alle- 
gation of the other party, not only in its gen- 
eral effect, butin the exact manner and form 
in which itis made, Steph. Pl. 189, 190. 


MODUS. Lat. In the civillaw. Man- 


| ner; Means; Way. 


In old conveyancing. Mode; manner; 
the arrangement or expression of the terms 
of a contract or conveyance, 

Also a consideration; the consideration of 
a conveyance, technically expressed by the 
word “wt,” 

A qualification, involving the idea of va- 
riance or departure from some general rule 
or form, either by way of restriction or en- 
largement, according to the circumstances of 
a particular case, the will of a donor, the par- 
ticular agreement of parties, and the like, 
Burrill. 

In criminal pleading. The modus ofan 
indictment is that part of it which contains 
the narrative of the commission of the crime; 
the statement of the mode or manner in which 
the offense was committed. Tray. Lat. Max, 

In ecclesiastical law, <A peculiar man- 
ner of tithing, growing out of custom. 


MODUS DE NON DECIMANDO. 
In ecclesiastical law. A custom or prescrip- 
tion of entire exemption from the payment 
of tithes; this is not valid, unless in the case 
of abbey-lands. 


Modus de non decimando non valet. 
A modus (prescription) not to pay tithes is 
void. Lofft, 427; Cro. Eliz. 511; 2 Shars. BI. 
Comm. 31. 


MODUS DECIMANDI. In ecclesias- 
tical law. A manner of tithing; a partial ex- 
emption from Lithés, or a pecuniary composi- 
tion prescribed by immemorial usage, and of 
reasonable amount; for it will ba invalid as 
a rank modus lf greater than the value of 
the tithes in the time of Richard I. Stim. 
Law Gloss. 


Modus et conventio vinecunt legem. 
Custom and agreement overrule law. This 
maxim ferms one of the first principles rel- 
ative to the law of contracts. The excep- 
tions to the rule here laid down are in easea 


MODUS HABILIS 


against public policy, morality, etc. 2 Coke, 
73; Broom, Max. 689, 691-695. 


MODUS HABILIS. A valid manner. 


Modus legem dat donationi. Custom 
gives law to the gift. Co. Litt. 19; Broom, 
Max. 459. “ 


MODUS LEVANDI FINES. The 
manner of levying fines. The title of ashort 
statute tn French passed in the eighteenth 
year of Kdward 1. 2 Inst.510; 2 Bl. Comm. 
349. 


MODUS TENENDI. The manner of 
holding; 7. e., the different species of tenures 
by which estates are held. 


MODUS TRANSFERRENDI. 
manner of transferring. 


MODUS VACANDI. The manner of 
vacating. How and why an estate has been 
relinquished or surrendered by a vassal to his 
lord might well be referred to by this phrase. 
See Tray. Lat. Max. s. o. 


MOEBLE, L. Fr. 
moebles, movable goods, 


The 


Movable. 
Britt. «a 11 


MOERDA. The secret killing of another; 
murder. 4 Bl. Comm. 194. 


MOFUSSIL. In Hindulaw. Separated; 
particularized; the subordinate divisions of a 
district in contradistinction to Sadder or 
Sudder, which implies the chief seat of gov- 
ernment. Wharton. 


MOHAMMEDAN LAW. A system 
of native law prevailing among the Moham- 
medans in India, and administered there by 
the British government. 


MOBHATRA. In French law. A trans- 
action covering afraudulent device to evade 
the laws against usury. 

It takes place where an individual buys 
merchandise from another on a eredit at a 
high price, to sell it immediately to the first 
seller, or toa third person who acts as his 
agent, at a much less price for cash. 16 
Toullier, no. 44. 


MOIDORE. A gold coin of Portugal, 
valued at twenty-seven English shillings. 
MOTETY. The halfof anything. Joint 


tenants are said to hold by moieties. Litt. 
125; 3 C. B. 274, 283. 


. 
MOLENDINUM. In old records. A 
roill. 


MOLENDUM. A prist; acertain quan- 
tity of corn sent to a mill te be ground. 


Biens 


784 


MONASTICON 


MOLESTATION. In Scotch law. A 


in questions of commonty or of controverted 
marches. Ersk. Inst. 4, 1, 48. 


MOLITURA. The toll or multure paid 
for grinding corn ata mill. Jacob. 


MOLITURA LIBERA. Free grinding; 
a liberty to have a mill without paying tolls 
to the lord. Jacob. 


MOLLITER MANUS IMPOSUIT. Lat, 
He gently laid bands upon. Formal words 
in the old Latin pleas in actions of trespass 
and assault where a defendant justified lay- 
ing hands upon the plaintiff, a3 where it was 
done to keep the peace, ete. The phrase is 
literally translated in the modern precedents, 
and the original is retained as the name of 
the plea in such cases. 3 Bl. Comm. 21; 1 
Chit. Pl. 501, 502; Id. 1071. 


MOLMUTIAN LAWS. The laws of 
Dunvallo Molmutius, a legendary or myth- 
ical king of the Britons, who is supposed to 
have begun his reign about 400 B.C, Thesa 
laws were famous in the land till the Con 
guest. Tomlins; Mozley & Whitley. 


MOMENTUM. In the civil law. An 
instant; an indivisible portion of time. Cals 
vin. 

A portion of time that might be measured; 
a division or subdivision of an hour; ans 
swering in some degree to the modern min- 
ute, but of longer duration. Calvin. 


MONACHISM. The state of monks, 


MONARCHY. A government in which 
the supreme power is vested in a single pere 
son. Where a monarch is invested with ab- 
solute power, the monarchy is termed “des- 
potie;” where the supreme power is virtual- 
ly in the laws, though the majesty of govs 
ernment and the administration are vested 
in a single person, it is a “limited” or 
“constitutional” monarchy. It is hereditary 
where the regal power descends immediately 
from the possessor to the next heir by blood, 
as in England; or elective, as was formerly 
the case in Poland. Wharton. 


MONASTERIUM. A monastery; a — 
church, Spelman, | 
MONASTICON. A book giving an ac- 


count of monasteries, convents, and religious 
houses. . 


MONETA 


MONETA. Money, (gq. 2.} 


Moneta est justum medium et mensu- 
42 rerum commutabilium, pam per me- 
dium monet fit omnium rerum con- 
veniens et justa wstimatio. Dav. Ir. K. 
B. 18. Money is the just medium and meas- 
are of commutable things, for by the medium 
of money a convenient and just estimation 
of ull things is made. 


MONETAGIUM. Mintage, or the right 
of coining money. Cowell. Hence, ancient- 
ly, a tribute payable to a lord who had the 
prerogative of coining money, by his ten- 
ants, in consideration of his retraining from 
changing the coinage. 


Mone‘andi jus comprehenditur in re- 
galibus que nunquam a regio sceptro 
abdicantur. The right of coining money is 
compreheaded among those royal prerogatives 
whieh are never relinguished by the royal 
scepter. Day. Ir. K. B. 18. 


MON. A general, indefinite term for 
the measure and representative of value; 
currency; the circulating medium; cash. 

“Morey” is a generic term, and embraces 
every description of coin or bank-notes rec- 
ognized by common consent as a representa- 
tiv of value in effecting exchanges of prop- 
erty or payment of debts. 5 Humph. 140. 


Money is used in a specific and also in a general | 


and mora comprehensive sense. In its specific 
sens?, it means what is coined or stamped by pub- 
lic avthority, and has its determinate value fixed 
by goverumeuts. In its more comprehensive and 
gens''al sense, it means wealth,—the reprosentativa 
of commodities of all Icinds, of lands, and of every- 
thing thst can be trunsferred in commerce. $1 
Ter. 10. 

Tu its strict technical senss, “money” moana 
coine’l metal, usually gold or silver, upon which 
ths governmeiit stamp has been impressed to indi- 
eate itsvalna. In itsmore popular sense, “money” 
me25$ any currency, tokens, bank-notes, or other 
cirenlatug medium in genera) use as the repre- 
sentstive of value. 45 Tex, 205. 

The term “moneys” is not of more extensive sig- 
nitication then “money,” and means only cash, 
en-i not things in action. 14 Johns. i; 1 Johns. 
Ch. 231. 


MONFEY-BILL. In parliamentary lan- 
guage, an act by which revenue is directed 
to be raised, for any purpose or in any shape 
wWaeissever, either for governmental pur- 
poses, and collected from the whole people 
generally, or for the benefit of a particular 
Gistrict, and collected in that district, or for 
making appropriations, 


MONEY-BROKER. A money-changer; 
a scrivener or jobber; one who lends or raises 
money to or for others. 

AM, DICT. LAW—50 


730 


MONEY ORDER 


MCNEY CLAIMS. in Engilsh prac 
tice. Under the judicature act of 1875, daims 
for the price of goods sold, for money lent, 
for arrears of rent, etc., and other claims 
where money is directly payable on a con- 
tract express or implied, as opposed to the 
cases where money is claimed by way of dam- 
ages for some independent wrong, whether 
by breach of contract or otherwise. ‘These 
“money claims” correspond very nearly to 
the “money counts” hitherto inuse. Mozley 
& Whitley. 


MONEY COUNTS. In pleading, A 
species of common counts, so called from the 
subject-matter of them; embracing the @- 
debitatus assumpstt count for money lent 
and advanced, for money paid and expended, 
and for money had and received, together 
with the insimul computassent count, or 
count for mouey due on an account stated, 


| 1 Burrill, Pr. 132. 


MONEY DEMAND. Aciaim fora fixed 
and liquidated amount of money, or for a 
sum which ean be ascertained by mere cal- 
culation; in this sense, distinguished from a 
claim: which must be passed upon and liqui- 
dated by a jury, called “damages.” 


MONEY HAD AND RECHIVED. In 
pleading. The technical designation of a 
form of declaration in assumpsit, wherein 
the plaintiff declares that the defendant had 
and received certain money, ete. 


MONEY JUDGMENT. One which ad- 
judges the payment of a sum of money, as 
distinguished from one directing an act to be 
done or property to be restored or transferred. 


MONEY LAND. A phrase descriptive 
of money which is held upon a trust to con- 
vert it into land. 


MONEY LENT. In pleading. The 
technical name of a declaration in an action 
ot assumpstt for that the defendant promised 
to pay the plaintiff for money lent. 


MONEY MADE, Thereturn made bya 
sheriff to a writ of execution, signifying that 
he has collected the gum of money required 
by the writ. 


MONEY OF ADIEU. In French law. 
Earnest money; so called because given at 
parling in completion of the bargain. <Arrheg 
is the usual French word for earnest money- 
“money of adieu” is a provineiaiism found 
in the province of Orleans. Poth. Cont. 507; 


MONEY ORDER. Under the postai 
reyulations of the United States, a money 


MONEY-OnRDER OFFICE 


order Is a species of draft drawn by one post- 
office upon another for an amount of money 
deposited at the first office by the person pur- 
chasing the money order, and payable at the 
second office to a payee named in the order. 


MONEHY-ORDER OFFICE. One of 
the post-offices authorized to draw or pay 
money orders. 


MONEY PAID. Inpleading. The tech- 
nical name of a declaration in assiumpsit, in 
which the plaintiff declares for money paid 
for the use of the defendant. 


MONEYED CAPITAL. This term has 
a more limited meaning than the term “per- 
sonal property,” and applies to such capital 
as ig readily solvable in money, 28 Fed. 
Rep. 776. 


MONEYED CORPORATION. A cor- 
poration having the power to make Joans up- 
on pledges or deposits, or authdrized by law 
to make insurance. 2 Rev. St. N. Y. (7th 
Ed.) 1871. 


MONGER. A dealeror seller. It is sel- 
dom or never used alone, or otherwise than 
after the name of any commodity, to express 
a seller of such commodity. 


MONIERS, or MONEYEERS. Minis- 
ters of the mint; also bankers. Cowell. 


MONIMENT. A memorial, superserip- 
tion, or record. 


MONITION,. In practice. A monition 
is a formal order of the court commanding 
something to be done by the person to whom 
it is directed, and who is called the “person 
monished.” Thus, when money is decreed 
to be paid, a monition may be obtained com- 
manding its payment. In ecclesiastical pro- 
cedure, a monition is an order monishing or 
warning the party complained against to do 
or not to do a certain act “onder pain of 
the law and contempt thereof.” A monition 
may also be appended to a sentence inflicting 
a punishment for a past offense; in that case 
the monition forbids the repetition of the 
offense. Sweet. 

In admiralty practice. Ihe summons 
to appear and answer, issued on filing the 
libel; which is either a simple monition in 
personam or an attachment and monition 
tz rem. Ben. Adm. 228, 239. It is some- 
times termed “monition viis et modis,” and 
has been supposed to be derived from the old 
Roman practice of summoning a defendant. 
10 Wheat. 400. 


786 


MONOPOLY 


The monition, in American admiralty practice, 
is, in effect, a summons, citation, or notice, though 
in form a command to the marshal to cite and ad- 
monish the defendant to appear and answer, and 
not a summons addressed ta the party. % Conk. 
Adm. (2d Hd.) 147. 


MONITORY LETTERS. Communica- 
tions of warning and admonition sent from 
an ecclesiastical judge, upon information of 
scandal and abuses within the cognizance of 
his court. 


MONOCRACY. A government by one 
person. 


MONOCRAT. A monarch who governs 
alone; an absolute governor. 


MONOGAMY. The marriage of one 
wife only, or the state of such as are re 
strained to a single wife. Webster. 

A Inarriage contracted between ona man 
and one woman, in exclusion of all the rest 
of nankind. The term is used in opposition 
to “bigamy” and “polygamy.” Wolff, Dr. 
de la Nat. § 857. 


MONOGRAM. A character or clpher 
composed of one or more letters interwoven, 
being an abbreviation of a name. 


MONOGRAPH. A special treatise upon 
a particular subject of limited range; a trea- 
tise or commentary upon 4 particular branch 
or division of a general subject. 


MONOMACHY. A duel; a single com- 
bat. : 

It was anciently allowed by law for the 
trial or proof of crimes. It was even per- 
mitted in pecuniary causes, but it is now for- 
bidden both by the civil Jaw and canon laws. 


MONOMANIA. In medical jurispru- 
dence. Derangement of a single faculty of 
the mind, or with regard to a particular sub- 
ject, the other faculties being in regular ex- 
erciss, 


Monopolia dicitur, cum unus solus 
aliquod genus mercaturs universum 
emit, pretium ad suum libitum statuens. 
11 Coke, 86. It is said to be a monopoly 
when one person alone buys up the whole of 
one kind of commodity, fixing a price at his 
own pleasure, 


MONOPOLIUM. The sole power, right, 
or privilege of sale; monopoly; a monupoly. 
Calvin. 


MONOPOLY. In commercial law. A 
privilege or peculiar advantage vesied in one 
or more persons or companies, consisting in 
the exclusive right (or power) to carry on a 


MONOPOLY 


particular business or trade, manufacture a 


_ particular article, or control the sale of the 


whole supply of a particular commodity. 
Defined in English law to be “a liccnse or 


privilege allowed by the king for the sole | 


buying and selling, making, working. or us- 
ing, of anything whatsoever; whereby the 
subject in general is restrained from that lib- 
erty of manufacturing or trading which he 
had before.” 4 Bl. Comm. 159; 4 Steph. 
Comm. 291. 


MONSTER. A prodigious birth; a hu- 
nian birth or offspring not having the shape 
of mankind; which catnot be heir to any 
land, albeit it be brought forth in marriage. 
Bract. fol. 5; Co. Litt. 7, 8; 2 Bi. Comm. 
246. 


MONSTRANS DE DROIT. L.Fr In 
English Jaw. A showing or manifesta- 
tion of right; one of the common law meth- 
ods of obtaining possession or restitution 
from the crown, of either real or personal 
property. It is the proper proceeding when 
the right of the party, as well as the right of 
the crown, appears upon record, and consists 
in putting in a claim of right grounded on 
facts already acknowledged and established, 
and praying the judgment of the eourt 
whether upon these facts the king or the sub- 
ject has the right. 3 Bl. Comm. 256; 4 
Coke, 545. 


MONSTRANS DE FAITS. L.Fr. In 
old English practice. A showing of deeds; 
a species of profert. Cowell. 


MONSTRAVERUNT, WRIT OF. In 
English law. A writ which lies for the 
tenants of ancient demesne whe hold by free 
charter, and not for those tenants who hold 
by copy of court roll, or by the rod, accord- 
ing to the custom of the manor, Fitzh. Nat. 
Brev. 14, 


MONSTRUM. A box in which relics 
are kept; also a muster of soldiers. Cowell. 


MONTES. In Spanish law. Forests or 
woods. White, New Recop. b. 2, tit. 1, ¢. 6, 
§1. 

MONTES PIETATIS. Public pawn- 
broking establishments; institutions estab- 
lished by government, in some European 
countries, for lending small sums of money 
on pledges of personal property. Im France 
they are called “montis de picté.” 


MONTH. Onc of the divisions of a year. 
The space of time denoted Ly this term varies 


787 


MOOT 


according as one or another of the following 
varieties of months is intended: 

Astronomical, containing one-twelfth of the 
time occupied by the sun in ea through 
the entire zodiac. 

Calendar, civil, ar solar, which is one of 
the months in the Gregorian calendar,—Jan- 
uary, February, Mareh, ete.,—-which are of 
unequal length. 

Zunar, being the period of one revolution 
of the mvon, or twenty-eight days. 


MONUMENT. Anything by which the 
memory of a person or an event is preserved 
or perpetuated. A tomb where a dead body 
has been deposited. 


Monumenta que nos recorda vocamus 
sunt veritatis et vetustatis vestigia. Co. 
Litt. 118. Monuments, which we call “rec- 
ords,” are the vestiges of truth and antiq- 
uity. 


MONUMENTS. Permanent landmarks 
established for the purpose of indicating 
boundaries. 


MONYA. In Norman law. Moneyage. 
A tax or tribute of one shilling on every 
hearth, payable to the duke every three years, 
in consideration that he should not alter the 
coin. Hale, Com. Law, 148, and note. 


MOOKTAR. In Hindu law. 
or attorney. 


MOOKTARNAMA. In Hindu law. A 
written authority constituting an agent; a 
power of attorney. 


MOOR. An olficerin the Isle of Man, 
who summons the courts for the several 
sheadings. The office is similar to the En- 
glish bailiff ofa hundred. 


MOORAGE. Asum due by law or usage 
for mooring or fastening of ships to trees or 


An agent 


posts at the shore, or toa wharf. 8 Bland, 
373. 
MOORING. Jnmaritimelaw. Anchor- 


ing or making fast to the shore or dock; the 
securing or confining a vessel in a particular 
station, as by eables and anchors or bya line 
or chain ran to the wharf. A vessel is 
“moored in safety,” within the meaning of 
a@ policy of marine insurance, when she is 
thus moored to a wharf or dock, free from 
any immediate danger from any of the perils 
insured against. See 1 Phil. Ins. 968, 


MOOT, adj. A subject for argument; 
unsettled; undecided. AS a moot case, a 
moot point. 


MOOT 


MOOT, n. In English law. Moots are 
exercises in pleading, and in arguing doubt- 
ful cases and questions, by the students of 
an inn of court beforethe benchers of the inn. 
Sweet, 


MOOT COURT. A court held for the 
arguing of moot cases or questions. 


MOOT HALL. The place where moot 
cases were argued. Also a council-chamber, 
hall of judgment, or town-hall. 


MOOT WILL. Hill of meeting, (gemot,) 
on which the Britons used to hold their 
courts, the judge sitting on the eminence; 
the parties, etc., on an elevated platform be- 
low. Enc. Lond. 


MOOT MAN. One of those who used to 
argue the reader’s cases in the inns of court. 


MOOTA CANUM. A pack of dogs, 
Cowell. 


MOOTING. The exercise of arguing 
questions of law or equity, raised for the 
purpose. See Moor. 


MORA. Lat. In thecivil law. Delay; 


default; neglect; culpable delay or default. 
Calvin. 


MORA. Sax. <A moor; barren or un- 
profitable ground; marsh; 4 heath; a watery 
bog or moor, Co. Litt. 5; Fieta, 1. 2, ¢. 71. 


MORA MUSSA. 
moor; a morass. 


A watery or boggy 


Mora reprobatur in lege. Delay is rep- 
robated in law. Jenk. Cent. p. 51, case 97. 


MORAL ACTIONS. Those only in 
which men have knowledge to guide them, 
and a will to choose for themselyes, Ruth, 
Inst. lib. 1. ¢. i. 


MORAL CERTAINTY. In the law of 
criminal evidence, Thatdegree of assurance 
which induces a manof sound mind to act, 
without doubt, upon the conclusions to which 
it leads. Wills, Cire. Ev. 7. 

A certainty that convinces and directs the 
understanding and satisfies the reason and 
judgment of those who are bound to act con- 
scientiously upon it, 

A high degree of impression of the truth 
of a fact, falling short of absolute certainty, 
but sufficient to justify a verdict of guilty, 
even in acapitail case. See Burrill, Cire. Ey. 
198-200. 

The phrase “moral certainty” has been {ntro- 
duced into our jurisprudence from the publicists 
and metapuysicians, aud signities only a very high 
degree of probability. It was observed by Pufen- 


788 


eee 


MORATUR IN LEGE 


dorf that, “when we declare such a thing to be 
morally certain, because it has been confirmed by 
credible witnesses, this moral certitude is nothing 
else butastrong presumption grounded on probable 
reasons, and which very seldom fails and decaivea 
us." “Probable evidence, ” says Bishop Butler, in 
the opening sentence of his Analogy, “ia esgen- 
tially distinguished from demonstrative by this: 
that it admits of degrees, and of all variety of them, 
from the highest moral certainty to the very low 

est presumption.” 115 Mass. 23, 


MORAL EVIDENCE. As opposed to 
“mathematical” or “demonstrative” evi 
dence, this term denotes that kind of evi- 
dence which, without developing an absolute 
and necessary certainty, generates a high de 
gree of probability or persuasive force. Itis 
founded upon analogy or induction, experi- 
ence of the ordinary course of nature or the 
sequence of events, and the testimony of 
men. 


MORAL FRAUD. This phrase is one 
of the less usual designations of “actual” or 
“positive” fraud or “fraud in fact,” as dis- 
tinguished from “constructive” fraud or 
“fraud in law.” It means fraud which in- 
volves actual guilt, a wrongful purpose, or 
moral obliquity. 


MORAL INSANITY. In medical ju- 
risprudence. A derangement of the moral 
system; a morbid condition, in which the 
passions, appetites, inclinations, and moral 
dispositions have eseaped from the control of 
the will and the conscience, and are porvert. 
ed to immoral acts or uses, although tle fac- 
ultics of perception, reason, and judgment 
remain normal, or nearly so, and there is no 
especial hallucination or illusion. Klepte 
mania is an example of this condition. 


Incapacity, from disease, to control one’s coxn- 
duct according to one’s knowledge; uncontrollable 
morbid impulse; disability of the will to refrain 
from what one knows is wrong and punishable; a 
morbid perversion of the affections, inclinations, 
and temper, independent of any disease or delusion 
operating directly on the intellect. Abbott, 

> 


MORAL OBLIGATION. A duty which 
is valid and binding in the forum of thecon- 
science, but is not recognized by the law as 
adequate to set in motion the machinery of 
justice; that is, one which rests upon ethical 
considerations alone, and is not imposed or 
enforced by pusitive law. 


MORANDA SOLUTIONIS CAUSA. 


Lat. For the purpose of delaying or post- 
poning payment or performance. 


MORATUR IN LEGE. Lat. He de 
lays in law. ‘The phrase describes the ar 
tion of one who demurs, because the party 


MORAVIANS 189 


MORTGAGE 


does not proceed in pleading, but rests or | time and exposed to view, to the end that 


abides upon the judgment of the court on a 
certain point, as to the legal sufficiency of 
his opponent's pleading. The court deliver- 
ate and determine thereupon. 


MORAVIANS. Otherwise called “Herrn-. 


hutters” or “United Brethren.” A sect of 
Christians whose social polity is particular 
and conspicuous. It sprung up in Moravia 
and Bohemia, on the opening of that reforma- 
tion which stripped the chair of St. Peter of 
s0 many voturies, and gave birth to so many 
denominations of Christians. They give ev- 


idence on theirsolemn athirvmation. 2Steph. 
Comm, 3d8n. 
MORBUS SONTICUS. Lat. In the 


civillaw. A sickness which rendered a man 
incapable of attending to business. 


MORE COLONICO. Lat. Inold 
pleading. In husband-likemanner. Townsh. 
Pl. 198. 


MORE OR LESS. This phrase, insert- 
ed in a conveyance of Jand immediately aft- 
er the statement of the quantity of land con- 
veyed, means that such statement is not to 
be taken as a warranty of the quantity, but 
only an approximate estimate, and that the 
tract or parcel described is to pass, without 
regard to an excess or deficiency in the quan- 
tity it actually contains. 


MORGANATIC MARRIAGH. The 


tawful and inseparable conjunction of a man, | 


of noble or illustrious birth, witha woman of 
inferior station, upon condition that neither 
the wife nor her children shall partake of the 
titles, arms, or dignity of the husband, or 
pucceed to his inheritance, but be contented 
with a certain allowed rank assigned to them 
by the morganaticcontract, But since these 
restrictions relate only to the rank of the 


parties and succession to property, without | 


allecting the nature of a matrimonial en- 
gagement, it must Le considered us a just 
Mutriage. The marriage ceremony was reg- 
ularly performed; the union was indissolu- 
ble; the children legitimate. Wharten. 


MORGANGINA, or MORGANGIVA. 
A gift on the morning after the wedding; 
dowry; the husband’s gift to his wife on the 
day after the wedding. Du Cange; Cowell. 


MORGEN. Anglo-Dutch. In old New 
York law. A measure of land, equal to 
about two acres. 


MORGUE. Aplace where the bodies of 
persons found dead are kept for a limited 


their friends may identify them. 


MORMONISM. A social and religious 
system prevailing in the territory of Utah, a 
distinctive feature of which is the practice oi 
polygamy. ‘These plural marriages are not 
recognized by law, but are indictable offenses 
under the statutes of the United States and 
of Utah. 


MORS. Lat. Death. 


Mors dicitur ultimum supplicium. 
Death is called the “last punishment,” the 
“extremity of punishment.” 3 Inst. 212. 


Mors omnia solvit. Death dissolves all 
things. Jenk. Cent. p. 160, case 2. Applied 
to the case of the death of a party to an ac- 
tion. 


MORSELLUM, or MORSELLUS, 
TERRA. In old English law. A small 
parcel or bif of land. 


MORT CIVILE. InFrenchlaw. Civil 
death, as upon conviction forfelony. It was 
nominally abolished by a law of the 31st of 
May, 1854, but something very similar to it, 
in effect at least, still remains. Thus, the 
property of the condemned, possessed by him 
at the date of his conviction, goes and be- 
longs to his successors, (Aérétier's,) as in ease 
of an intestacy; and his future acquired prop- 
erty goes to the state by right of its preroga- 
tive, (par droit de déshérenee,) but the state 
may, asa matter of grace, make it over in 
whole or in part to the widow and children. 
Brown. 


MORT D ANCESTOR. An ancient 
and now almost obsolete remedy in the En- 
glish law. An assizeot mort d’ancestor was 
a writ which lay for a person whose ances- 
tor died seised of lands in fee-simple, and 
after bis death a stranger abated; and this 
writ direeted the sheriff to summon a jury er 
assize, who should view the land in question 
and recognize whether such ancestor were 
seised thereof on the day of his death, and 
whether the Jemandaut were the next heir. 


MORTALITY. This word, in its ordi- 
nary sense, never means violent death, but 
death arising from natural causes. 5 Barn, 
& Ald. 110; 3 Barn. & C. 793. 


MORTGAGE. An estate created by a 
conveyance absolute in its form, butintended 
to secure the performance of some act, such 
as the payment of money, and the like, by the 
grantor or some other person, and to become 
void if the act is performed agreeably to the 


MORTGAGE 


terms prescribed at the time of making such 
conveyance. 1 Washb. Real Prop. *475. 

A conditional conveyance of land, designed 
as a security for the payment of money, the 
fulfillment of some contract, or the perform- 
ance of some act, and to be void upon such 
payment, fulfillment, or performance. 44 
Me. 299, 

A debt by specialty, secured by a pledge of 
lands, of which the legal ownership is vested 
in the creditor, but of which, in equity, the 
debtor and those claiming under him remain 
the actual owners, until debarred by judicial 
sentence or theirown laches. Coole, Mortg. 1. 

Mortgage is a right granted to the creditor 
over the property of the debtor for the secu- 
rity of his debt, and gives him the power of 
having the property seized and sold in de 
fault of payment. Civil Code La. art. 3278. 

Mortgage is a contract by which specific 
property is hypothecated for the performance 
of an act, without the necessity of a ehange 
of possession. Civil Code Cal. § 2920. 

In the law of Louisiana. The con- 
ventionul mortgage is a contract by which 
a person binds the whole of his property, 
or a portion of it only, in favor of another, 
to secure the execution of some engagement, 
but without divesting himself of the posses- 
sion. Civil Code La. art. 3290. 

The judicial mortgage is that resulting 
from judgments (whether these be rendered 
on contested cases or by default, or whether 
they be final or provisional) in favor of the 
person obtaining them. Civil Code La, art. 
3321, 

The law alone in certain cases gives to the 
ereditor a mortgage on the property of his 
debtor, without it being requisite that the 
parties should stipulate it. This is called 
“legal mortgage.” It is called also “tacit 
mortgage,” because it is established by the 
law without the aid of any agreement. Civil 
Code La. art. 3311. 


MORTGAGE OF GOODS. A convey- 
ance of goods in gage or mortgage by which 
the whole legal title passes conditionally to 
the mortgagee; and, if the goods are not re- 
deemed at the time stipulated, the title be- 
comes absolute in law, although equity will 
interfere to compel a redemption. It is dis- 
tinguished from a “pledge” by the circum- 
stance that possession by the mortgagee is not 
or may not be essential to create or to support 
the title. Story, Bailm. § 287. 


MORTGAGEE. 
esives a mortgage. 


He that takes or re- 


790 


MORTUARY TABLES 


MCRTGAGOR. He that gives a mort- 
gage. 
MORTH. Sax. Murder, answering ex- 


actly to the French “assassinat” or “muertra 
de guet-apens,” 


MORTHLAGA, A murderer. 
MORTHLAGE, Murder. Cowell. 


MORTIFICATION. In Scotch law. A 
term nearly synonymous with “mortmain.” 
Bell. Lands are aaid to be mortijied for a 
charitable purpose. 


MORTIS CAUSA. Lat. By reason of 
death; incontemplation of death. Thus used 
in the phrase “Donatio mortis causa,” 
(q. 2.) 


Mortis momentum est ultimum vite 
momentum. Thelast moment of life is the 
moment of death. 4 Bradf. 245, 250. 


MORTMAIN. A term applied to denote 
the alienation of lands or tenements to any 
corporation, sole or aggregate, ecclesiastical 
or temporal. These purchases having been 
chiefly made by religious houses, in conse 
quence of which lands became perpetually 
inherent in one dead hand, this has occa- 
sioned the general appellation of “mortmain” 
to be applied to such alienations. 2 BI. 
Comm. 268; Co. Litt. 26. 


MORTMAIN ACTS, These acts had for 
their object to prevent lands getting into the 
possession or control of religions corpora- 
tions, or, as the name indicates, in moriua 
manu. After numerous prior acts dating 
from the reign of Edward 1.,it was enacted 
by the statute 9 Geo. II. c. 86, (called the 
“Mortmain Act” par excellence,) that no 
lands should be given to charities unless cer= 
tain requisites should be observed. Brown. 


MORTUARY. Inecclesiastical law. A 
burial-place. A kind of ecelesiastical heriot, 
being a customary gift of the second best 
living animal belonging to the deceased, 
elaimed by and due to the minister in many 
parishes, on the death of his parishioners, 
whether buried in the church-yard or nof, 


Cowell 


| 2 Bl. Comm. 425. 


Tt has been sometimes used in a civil as 
well as in an ecclesiastical sense, and ap- 
plied to a payment to the lord of the fea. 
Paroch. Antiq. 470. 


MORTUARY TABLES. ‘Tables for es- 
timating the probable duration of the life 
of a party ata given age. 67 Cal. 16, 6 Pac. 
Rep. 871. 


MORTUUM VADIUM 


MORTUUM VADIUM. A dead pledge; 
amortgage, (q. v.;) a pledge where the profits 
or rents of the thing pledged are not applied 
to the payment of the debt. 


MORTUUS. Dead. So in sheriil’s re- 
turn, mortuue est, he is dead. 


Mortuus exitus non est exitus. A 
dead issue is noissue, Co. Litt. 29. Achild 
born dead is not considered as issue, 


MMos retinendus est fidelissims vetus- 
tatis. 4 Coke, 78. A custom of the truest 
antiquity is to be rebuined. 


MOSTRENCOS. 
Strayed goods; estrays. 
b. 2, tit. 2, ¢. 6. 


MOTE. Sax. <A meeting; an assembly. 
Used in composition, as burgmote, folkmote, 
ste. 


MOTE-BELL. The bell which was used 
by the Saxons to summon people to the court. 
Cowell. 


MOTEER. A customary service or pay- 
ment at the mote or court of the lord, from 
which some were exempted by charter or 
privilege. Cowell. 


MOTHER. A woman who has borne a 
child; a female parent; correlative to “son” 
or “daughter.” 


MOTHER-IN-LAW. The mother of 
one’s wife or of one’s husband. 


MOTION. In practice. An occasional 
application to a court by the parties or their 
counsel, in order to obtain some rule or order, 
which becomes necessary either in the prog- 
ress of a cause, or summarily and wholly un- 
connected with plenary proceedings. 

A motion is a written application for an 
order addressed to the court or to a judge in 
vacation by any party to a suit or proceeding, 
or by any one interested therein. Rey. Code 
Iowa 1880, § 2911; Code N. Y. § 401. 

In parliamentary law. The formal 
node in which a member submits a proposed 
measure or resolve for the consideration and 
action vf the meeting. 


In Spanish law. 
White, New Recop. 


MOTION FOR DECREE. Under the 
chaneery practice, the most usual mode of 
bringing on a suit for hearing when the de- 
fendant has answered is by motion for de- 
eree. Todo this the plaintiff serves on the 
defendant a notice of his intention to move 
fora decree. Hunter, Suit Eq. 59; Daniell, 
Ch. Pr. 722. 


791 


MOVE 


MOTION FOR JUDGMENT. In En- 
glish practice. A proceeding whereby a 
party to an action moves for the judgment 
of the court in his favor. See Sup. Ct. Rules 
1853, ord. 40. 


MOTION TO SET ASIDE JUDG- 
MENT, This is a step taken by a party in 
an action who is dissatistied with the judg- 
ment directed to be entered at the trial of the 
action. 


MOTIVE. The inducement, cause, or 
reason Why a thing is done. An act legal in 
itself, and which violates no right, is not 
actionable on account of the motive which 
actuated it. 5 Amer. Law Reg. (O. 8.) 528. 


MOTU PROPRIO. Lat. Of his own 
motion, Thecommencing words of a certain 
kind of papal rescript. 


MOURNING. ‘The dress or apparel worn 
by mourners at a funeral and for a time aft- 
erwards. Also the expenses paid for such 
apparel. 


MOVABLE. That which can be changed 
in place, ag movable property; or in time, as 
movable feasts or terms of court. 


MOVABLES. Things movable; mava- 
ble or personal chattels, which may be an- 
nexed to or attendant on the person of the 
owner, and carried about with him from one 
part of the world to another. 2 Bl. Comm. 
357. Movables consist—First, of inanimate 
things, as goods, plate, money, jewels, im- 
plements of war, garments, and the like, or 
vegetable productions, a3 the fruit or othe: 
parts of a plant when severed from the body 
of it. or the whole plant itself when severed 
from the ground; secondly, of animals, which 
have in themselves 8 principle and power of 
motion. 2 Steph. Comm. 67. 

In the civil law. Movables (mobilia,) 
properly denoted inanimate things; animals 
being distinguished as moventia, things mov- 
ing. Calvin. 

In Scotch law. “Movables” are opposed 
to‘‘heritage.” So that every apecies of prop- 
erty, and every right a man ean hold, is by 
that law either heritable or movable. Bell. 


MOVE. 1. To make an application to « 
court for a rule or order. 

2. To propose a resolution, or recommend 
action in a deliberative body, 

3. To pass over; to be transferred; as 
when the consideration of a contract is said 
to “move” from one party to the other. 

4. Tooccasion; to contribute to; to tend o 


MOVENT 


lead to. The forewheel of a wagon was said 
*to move to the death of aman.” Sayer, 
249. 


MOVENT. One whe moves; one who 
makes a motion before a court; the applicant 
for a rule or order. 


MOVING FOR AN ARGUMENT, 
Making a motion on a day which is not mo- 
tion day, in virtue of having argued a special 
case; used in the exchequer after it became 
obsolete in the queen’s bench. Wharton. 


MUEBLES. In Spanish law. Mova- 
bles; all sorts of personal property. White, 
New Recop. b. 1, tit. 8,¢.1, § 2. 


MUIRBURN. In Scotch law. The of- 
fense of setting fire to a muiror moor, 1 
Brown, Ch. 78, 116. 


MULATTO. A mulatto is defined to he 
“a person that is the offspring of a negress 
by a white man, or of a white woman by a 
negro.” 18 Ala. 276. 


*MULCT. <A penalty or punishment im- 
posed ona person guilty of some offense, tort, 
or misdemeanor, usually a pecuniary fine or 
condemnation in damages, 


Mulecta damnum fam non irrogat. 
Cod. 1, 54. A fine does not involve loss of 
character. 


MULIER. Lat. (1) A woman; (2) a 
virgin; (8) a wife; (4) a legitimate ciild. 
1 inst. 243. 


MULIER PUISNE. L. Fr. Whena 
man has a bastard son, and afterwards mar- 
ries the mother, and by her has also a legiti- 
mate gon, the elder son is bastard etgné, and 
the younger son is mulier puisné. 


MULIERATUS. A legitimate son. 
Glanvil. 


MULIERTY. Inold Englishlaw. The 
state or condition of a mulier, or lawful is- 
sue. Co. Litt. 3525. The opposite of bas- 
tardy. Blount. 


Multa conceduntur per obliquum que 
non conceduntur de directo. Many 
things are allowed indirectly which are not 
allowed directly. 6 Coke, 47. 


MULTA, or MULTURA EPISCOPI. 
A fine or final satisfaction, anciently given 
to the king by the bishops, that they might 
have power to make their wills, and that 
they might have the probate of other men’s 
wills, and the granting ofadministration. 2 
Inst. 291. 


vi) 


i Le 


a MULTIVLEX, ETC. 


Multa fidem promissa levant. Many 
promises lessen confidence. 11 Cush. 350. 


Multa ignoramus que nobis non late- 
rent si veterum lectio nobis fuit famili- 
aris, 10 Coke, 73. We are ignorant of 
many things which would not be hidden 
from us if the reading of old authors was fa 
miliar to us. 


Multa in jure communi contra ratio- 
nem adisputandi, pro communi utilitate 
introducia sunt. Many things have been 
introduced into the common law, witha view 
to the public good, which are inconsistent 
with sound reason. Co. Litt. 706; Broom, 
Max. 158. 


Multa multo exercitatione facilius 
quam regulis percipies. 4 Inst. 50. You 
will perceive many things much more easily 
by practice than by rules. 


Multa non vetat lex, ques tamen tacite 
damnavit. ‘The law forbids not many 
things which yet it has silently condemned. 


Multa transeunt cum univorsitate qua 
non per se transeunt. Many things pass 
with the whole which do not pass separately. 
Co, Litt. 12¢. 


Multi multa, nemo omnia novit. 4 
Inst. 348. Many men have known many 
things; no one has known everything, 


MULTIFARIOUSNESS. In _ equity 
pleading. The fault of improperly joining 
in one bill distinct and independent matters, 
and thereby confounding them; as, for ex- 
ample, the uniting in one bill of several mat- 
ters perfectly distinct and unconnected 
against one defendant, or the demand of sev- 
eral matters of a distinct and independent 
nature against several defendants, in the 
same bill. Story, Eq. Pl. § 271. 


MULTIPARTITE. Divided into many 
or several parts. 


MULTIPLE POINDING. In Scotch 
law. Double distress; a name given to an 
action, corresponding to proceedings by way 
of interpleader, which may be brought by a 
person in possession of guods claimed by dif- 
ferent persons pretending a right thereto, 
calling the claimants and all others to settle 
their claims, so that the party who sues may 
be liable only “in once and single payment.” 
Bell. 


Multiplex et indistinctum parit con- 
fusionem; et questiones, quo simpli- 
ciores, eo lucidiores. Hob. 335. Maulti- 


if 


| 


MULTIPLICATA, ETC. 


a 
plicity and indistinctness produce confusion; 
and questions, the more simple they are, the 
more lucid. 


Multiplicata transgressione crescat, 
peonss inflictio. .As transgression is multi- 
plied, the infliction of punishment should in- 
crease. 2 Inst. 479. 


MULTIPLICITY. A state of being 
many. ‘That quality of a pleading which 
involves a variety of matters or particulars; 
undue variety. 2Saund. 410. A multiply- 
ing or increasing. Story, Eq. Pl. § 287. 


MULTIPLICITY OF ACTIONS. A 
phrase descriptive of the state of affairs 
where several different suits or actions are 
brought upon the same issue. It is obviated 
in equity by a bill of peace; in courts of law, 
by a rule of court for the consolidation of 
different actions. 


MULTITUDE. An assemblage of many 
people. According to Coke it is not a word 
of very precise meaning: for some authori- 
ties hold that there must be at least ten per- 
sons to makea multitude, while others main- 
tain that, no definite number is fixed by law. 
Co. Litt. 257. 


Multitudinem decem faciunt. Co. Litt. 
257. Ten make a multilude. 


Multitudo errautium non parit errori 
patrocinum, The multitude of those who 
err furnishes no countenance or excuse for 
error. 11 Coke, 75a. it is no excuse for 
error that it is entertained by numbers. 


Multitudo imperitorum perdit curiam. 
The great number of unskillful practitioners 
ruins acourt. 2 Inst. 219. 


MULTO. 
sleep. 


In old records. A wether 


Hiulto utilins est panca idonea oeffun- 
dere quam multis inutilibus homines 
gravari. 4 Coke, 20. It is more useful to 
pour forth a few useful things than to op- 
press men with many useless things, 


MULVTURE. In Scotchlaw. The quan- 
tity of grain or meal payable to the proprie- 
tor of 3 mill, or fo the multurer, his tacks- 
map, for manufacturing the corns. 
Inat. 2, 9, 19, 


MUMMIFICATION. In medical juris- 
prudence, A term applied to the complete 
drying up of the boy. It is the result of 
burial in a dry, hot soil, or the exposure of 


793 


MUNICIPAL BONDS 


the body to a continuously cold and dry at- 
mosphere, 16 Amer. & Eng. Enc. Law, 261. 


MUMMING. Antic diversions in the 
Christmas holidays, suppressed in Queen 
Amnne’s time. 


MUND. In old English law. Peace; 
whence mundbryc, a breach of the peace. 


MUNDRYRD, MUNDEBURDE. A 
receiving into favor and protection. Cowell. 


MUNDIUM. Inold Frenehlaw. A trib- 
ute paid by a church or monastery to their 
scignorial eveucs and vidames, as the price 
of protecting them. Steph. Lect. 236. 


MUNERA. Inthe early ages of the fend- 
al law, this was the name given to the grants 
of land made by a king or chieftain to his 
followers, which were held by no certain 
tenure, but merely at the will of the lord. 
Afterwards they became life-estates, and then 
hereditary, and were called first “benefices, * 
and then “feuds.” See Wright, Ten. 19. 


MUNICEPS. In Roman law. A pro- 
vincial person; a countryman. This was 
the designation of one born in the provinces 
or in a cify politically connected with Rome, 
and who, having become a Roman citizen, 
was entitled to hold any offices at Rome ex- 
cept some of the highest. In the provinces 
the term seems to have been applied to the 
freemen of any city who were eligible to the 
municipal offices. Calvin. 


MUNICIPAL. “Municipal” signifies 
that which belongs Co a corporation or a city. 
The term includes the rules or laws by which 
a particular district, community, or nation 
is governed, It may also mean loeal, partic- 
ular, independent. 43 Ala. 598. 

“Municipal,” in one of its meanings, is used in 
opposition to “international,” and denotes that 
which pertains or belongs properly to ax individ- 
ual state or separate community, as distinguished 
from that which is common to, or observed be 
tween, all nations. Thus, piracy is an “interns. 
tional offense, "and is denounced by “international 
law,” but smuggling is a “municipal offense,” and 
coguizable by “municipal law.” 


MUNICIPAL AID. A contribution or 
assistance granted by a municipal corpora- 


| tion towards the execution er progress of 
Ersk. 


some enterprise, undertaken by private par- 
ties, but likely to be of benefitto the muniei- 
pality; ¢.g.. @ railroad. — 


MUNICIPAL BONDS. Negotiable 
bonds issued by x municipal corporation, to 
secure its indebtedness, 


MUNICIPAL CLAIMS 794 


MUNICIPAT CLAIMS. In Pennsyl- 
yvania law. Claims filed by a city against 
property owners therein, for taxes, rates, 
levies, or assessments for local improvements, 
such as the cost of grading, paving, or curb- 
ing the streets, or removing nuisances. 


MUNICIPAL CORPORATION. A 
public corporation, created by government 
for political purposes, and having subordi- 
nate and local powers of legislation; e. g., a 
county, town, city,cte. 2 Kent, Comm. 275. 

An incorporation of persons, inhabitants of 
a particular place, or connected with a partic- 
ular district, enabling them to conduct its 
local civil government. Glov, Mun. Corp. 1. 

In English law. <A body of persons ina 
town having the powers of acting as one per- 
son, of holding and transmitting property, 
and of regulating the government of the 
town. Sueh corporations existed in thechief 
towns of Kngland (as of other countries) 
from very early times, deriving their author- 
ityfrom “incorporating” charters granted by 
the crown. Wharton. 


MUNICIPAL CORPORATIONS 
ACT. In Englishlaw. A general statute, 
(5 & 6 Wm. 1V. c. 76,) passed in 1835, pre- 
seribing general regulations for the incorpo- 
ration and government of boroughs. 


MUNICIPAL COURTS. In the judi- 
eial organization of several stutes, courts are 
established under this name, whose territori- 
al authority is confined to the city or com- 
munity in which they are erected. Such 
courts usually have a criminal jurisdiction 
corresponding to that of a police court, and, 
in some cases, possess civil jurisdiction in 
small causes. 


MUNICIPAL LAW, in contradistinc- 
tion to international law, is the law of an in- 
dividual state or nation. Itis the rule or law 
by which a particular district, community, 
or nation is governed. 1 Bl, Comm. 44. 

That which pertains solely to the citizens 
and inhabitants of a state, and is thus distin- 
guished from political law, commercial law, 
and the law of nations. Wharton. 


MUNICIPAL LIEN. A lien or claim 
existing in favor of a municipal corporation 
against a property owner for his proportion- 
ate share of a public improvement, mude by 
the municipality, whereby his property is 
specially and individually benelited. 

MUNICIPAL OFFICER. An officer 


belonging to 4 municipality; that is, a city, 
town, or borough, 


MURDER 


MUNICIPAL ORDINANCE. A law, 
rule, or ordinance enacted or adopted by a mu- 
nicipal corporation. 


MUNICIPAL SHCURITIES. The evi- 
dences of indebtedness issued by cities, towna, 
counties, townships, school-districts, and 
other such territorial divisions of a state. 
They are of two general classes: (1) Munic- 
ipal warrants, orders, or certificates; (2) 
municipal negotiable bonds. 15 Amer. & 
Eng. Enc. Law, 1206. 


MUNICIPAL WARRANTS. A munie- 
ipal warrant or order is an instrument, gen- 
erally in the form of a bill of exchange, 
drawn by an officer of a municipality upon 
its treasurer, directing him to pay an amount 
of money specified therein to the person 
named or his order, or to bearer. 15 Amer. 
& Eng. Enc. Law, 1206. 


MUNICIPALITY. <A municipal corpo- 
ration; a city, town, borough, or incorporated 
village. Also the body of officers, taken col- 
lectively, belonging to a city. 


MUNICIPIUM. In Roman law. 4 for- 
eign town to which the freedom of the city 
of Rome was granted, and whose inhabitants 
had the privilege of enjoying offices and 
honors there; a free town. Adams, Rom. 
Ant. 47, 77. 


MUNIMENTS. The instruments of 
writing and written evidences which the 
owner of Jands, possessions, or inheritances 
has, by which he is enabled to defend the 
title of his estate. Termes de la Ley; 3 inst. 
170. 


MUNIMENT-HOUSH, or MUNI- 
MENT-ROOM. A house or roum of 
strength, in cathedrals, collegiate churches, 
castles, colleges, public buildings, ete., pur- 
posely made for keeping deeds, charters, 
writings, etc. 3% Inst. 170. 


MUNUS. Lat. 
efice or feud. 
tacle, 


A gift; an office; a ben- 
A gladiatorial show or spec- 
Calvin.; Du Cange. 


MURAGE. A toll formerly levied in 
England for repairing or building public 
walls. 


MURDER. In criminal jaw. The will- 
ful killing of any subject whatever, with mal- 
ice aforethought, whether the person slain 
shall bean Englishman ora foreigner. Hawk. 
P.C.b. 1, «@ 13, § 3. The killing of any 
person under the king’s peace, with malica 
prepense or aforethought, either express, or 


MURDER ft 


implied by law. 1 Russ. Crimes, 421; 5 Cush. 
804. When a person of sound mind and dis- 
eretion unlawfully killeth any reasonable 
ereature in being, and under the king’s peace, 
with malice aforethought, either express or 
implied. 8 Inst. 47. ; 

Murder is the unlawful) killing of a human 
being, with malice aforethought. Pen. Code 
Cal. § 187. 

Whoever kills any human being with mal- 
ice aforethought, either express or implied, 
is guilty of murder. Rey. Code Iowa 1880, 
§ 3348. 

Murder is the unlawful killing of a human 
being, in the peace of the state, by a person 
of sound memory and discretion, with malice 
aforethought, either express or implied. Code 
Ga. 1882, § 4320. 

The killing of a human being, without the 
authority of law, by any means, or in any 
manner, shall be murder in the following 
cases: When done with deliberate design to 
effect the death of the person killed, or of any 
human being; when done in the commission 
of an act eminently dangerous to others, and 
evincing a depraved heart, regardless of hu- 
man life, although without any premeditated 
design to effect the death of any particular 
individual; when done without any design to 
effect death, by any person engaged in the 
commission of the crime of rape, burglary, 
arson, or robbery, or in any attempt to com- 
mit such felonies. Rey. Code Miss. 1880, 
§ 2875. 

Every homicide, perpetrated by poison, ly- 
ing in wait, or any other kind of willful, de- 
liberate, malicious, and premeditated killing; 
or committed in the perpetration of, or the 
attempt to perpetrate, any arson, rape, rob- 
bery, or burglary; or perpetrated from a pre- 
meditated design unlawfully and maliciously 
to effect the death of any human being other 
than him whois killed; or perpetrated by any 
act greatly dangerous to the lives of others, 
and evidencing a depraved mind, regardless 
of human life, although without any precon- 
ceived purpose to deprive any particular per- 
son of life,—is murder in the first degree; 
and every other homicide committed under 
such circumstances as would have constituted 
murder at common law is murder in the sec- 
onddegree. Code Ala. 1886, § 3725. 


MURDRUM. In old English law. 
killing of a man in a secret manner, 


The 


MURORUM OPERATIO. The service 
of work and labor done by inhabitants and 
adjoining tenants in building or repairing 


95 MUTATION OF LIBEL 


the walls of a city or castle; their personal 
service was commuted into murage, (gq. t.) 
Cowell. 


MURTHRUM. InoldSecotchlaw. Mur- 
ther or murder. Skene. 


MUSEUM. A building or institution for 
the cultivation of science or the exhibition 
of curiesities or works of art. 

The term “museum” embraces not only 
collections of curiosities for the entertain- 
mont of the sight, but also such as would in- 
terest, amuse, and instruct the mind. 5 
Stew. & P. 109. 


MUSSA. In old English law. A moss 
or marsh ground, or a place where sedges 
grow; a place overrun with moss. Cowell. 


MUSTER. To assemble together troops 
and their arms, whether for inspection, drill, 
or service in the field. To take recruits into 
the service in the army and inseribe their 
names on the muster-roll or ofticial record. 
See 8 Allen, 498, 


MUSTER-BOOK. A book in which the 
forces are registered. Termes de la Ley. 


MUSTER-MASTER. One who superin- 
tended the muster to prevent frauds, St, 35 
Eliz. c. 4. 


MUSTER-ROLL. Inmaritimelaw. A 
list or account ofa ship’s company, required to 
be kept by the master or other person having 
eure of the ship, containing the name, age, 
national character, and quality of every per- 
son employed in theship. Abb. Shipp. 191, 
192; Jac. Sea Laws, 161, 


MUSTIZO. <A name given to the issue 
of an Indian and a negro. Dud, (S. C.) 174. 


MUTA-CANUM. A kennel of hounds; 
one of the mortuaries to which the crown 
was entitled at a bishop’s or abbot’s decease. 
2 Bl. Comm. 426. 


MUTATIO NOMINIS. Lat. Inthe 
civillaw. Changeof name. Cod. 9, 25, 


MUTATION. In French law. This 
term is synonymous with “change,” and is 
especially applied to designate the change 
which takes place in the property of a thing 
in its transmission from ane person to an- 
other, Alutation, therefore, happens when 
the owner of the thing sells, exchanges, or 
gives it. Merl. Répert. 


MUTATION OF LIBEL. In practice. 
An amendment allowed to a libel, by which 


MUTATIS MUTANDIS 


theve is an alteration of the substance of the 
libel, as by propounding a new cause of ac- 
tion, or asking one thing instead of another. 
Dunl. Adm, Pr. 213, 


MUTATIS MUTANDIS. Lat. With 
the necessary changes in points of detail. 


MUTE. Speechless; dumb; that cannot 
or will not speak. In English criminal law, 
& prisoner is said to stand mute when, being 
arraigned for treason or felony, he either 


makes no answerat all, or answers foreign to | 


the purposo or with such matter as is not al- 
lowable, and will not answer otherwise, or, 
upon having pleaded not guilty, refuses to 
put himself wpon the country, 4 Bl. Comm. 
324. 


MUTILATION. Incriminallaw. The 
depriving a man of the use of any of those 
limbs which may be useful to him in fight, 
the loss of which amounts to mayhem. 1 BIL. 
Comm. 130. 


MUTINOUS. Insubordinate; disposed to 
mutiny; tending to incite or encourage mu- 
tiny. 


MUTINY. Incriminal law. An insur- 
rection of soldiers or seamen against tl.e au- 
thority of their commanders; a sedition or 
revolt in the army or navy, 


MUTINY ACT. In English law. An 
act of parliament annuully passed to punish 
mutiny and desertion. 1 Bl. Comm, 4165. 


MUTUAL. Interchangeable; reciprocal; 
each acting in return or correspondence to 
the other; given and received; spoken of an 
engagement or relation in which like duties 
and obligations are exchanged. 

“Mutual” is not synonymous with “common,” 
The latter word, in one of its meanings, denotes 
that which is shared, in the eame or different de- 
grees, by two or more persons; but the former im- 
plies reciprocal action or interdependent counec- 
tion. 

MUTUAL ACCOUNTS. Accounts com- 
prising mutual credits between the parties; 
or an existing credit on one side which con- 
stitutes a ground for credit on the other, or 
where there is an understanding that mutual 
debts shall be a satisfaction or set-off pro 
tanto between the parties. 27 Ark. 343, 


MUTUAL CREDITS. In bankrupt law. 
Credits which must, from their nature, ter- 
minate in debts; as where a debt is dus from 
one party, and credit given by him to the 
other for a sum of money payable at a future 


796 


MUTUARY 


day, and which will then become a debt; or 
where there is a debt on one side, and a de- 
livery ef property with directions to turn it 
into money on the other. & Taunt. 499; 2 
Smith, Lead. Cas. 179. 

By thls phrase, in the rule under which courte 
of equity allow set-off in cases of mutual credit, 
we are to understand a knowledge on both sides of 
an existing debt due to one party, and acredit by 
the other party, founded on and trusting to such 
debt, as a means of discharging it. 9N.J. Eq. 44 

Credits given by two persons mutually; 4. 4, 
each giving credit to the other, It is a more ex- 
tensive phrase than “mutual debts.” Thus, the 
sum credited by one may be due at once, that by 
the other payable in swturo; yet the credits are 
mutua!, though the transaction would not come 
within the meaning of “mutual debts.” 1 Atk. 230; 
? Term R, 378. 


MUTUAL DHBTS. Money due on both 
sides between two persons. 


MUTUAL INSURANCE. That form 
of insurance in which sach person insured 
becomes a member of the company, and Lha 
members reciprocally engage to indemnify 
each other against losses, any loss being met 
by an assessment laid upon all the members. 


MUTUAL MISTAKE, See MISTAKE. 


MUTUAL PROMISES. Promises asi- 
multaneously made by and between two par- 
ties; each being the consideration for the 
other, 


MUTUAL TESTAMENTS. Wills made 
by two persons who leave their effects recip- 
rocally to the survivor. 


MUTUALITY. Reciprocation; inter. 
change, An acting by each of two parties; 
an acting in return. 


In every agreement the parties must, as regards 
the principal or essential part of the transaction, 
intend the sume thing; 4 ¢, each must know what 
the otheristodo. This is called *muiuality of as- 
sent,” Chit. Cont. 13. 

In a simpis contract arising from agreement, it 
is sometimes the essence of the transaction that 
each party should be bound to do something under 
it, This requirement is called “mutuality.” 
Sweet. 

Mutuality of a contract means an obligation on 
each to do, er permit to be done, something in con- 
sideration of the actor promise of the other. 26 
Md. 37. 


MUTUANT. The person who lends chat- 
tela in the cortract of mutuum, (gq. v-) 


MUTUARI. To borrow; 
borrowing. 2% Arch. Pr. 25. 


mutuatiis, & 


MUTUARY. A person who borrows per- 
sonal chattels to be consumed by him and re- 


MUTUS ET SURDUS 


turned to the lender in kind and quantity; 
the borrower in a contract of mutuum. 


MUTUS ET SURDUS. Lat. In civil 
and old English law. Dumb and dvaf. 


MUTUUM. Lat. In the law of bail- 
ments. <A loan for consumption; a loan of 
chattels, upon an agreement that the bor- 
rower may consume them, returning to the 
lender an equivalent in kind and quantily. 
Story, Bailm. § 228. 


MYNSTER-HAM. Monastic habitation; 
perhaps the part of a monastery set apart for 
purposes of hospitality, or as a sanctuary for 
criminals. Ane. Inst. Eng. 


MYSTERY. A trade, art, or occupation. 
2 Inst. 668. Musters frequently bind them- 
selyes in the indentures with their appren- 


797 


MYSTIC TESTAMENT 


tices to teach them their art, trade, and mys- 
tery. 


MYSTIC TESTAMENT. In the law 
of Louisiana. <A sealed testament. 


The mystic or secret testament, otherwise called 
the ‘closed testament,” is made in the following 
manner: The testator must sign bis dispositions, 
whetber he kas written them himself or has caused 
them to be written by another person. The paper 
containing those dispositions, or the paper serving 
as ticir envelopé, must be closed and sealed. The 
testator shall present it thus closed and sealed tao 
the notary and teseven witnesses, or he shall cause 
it to beclosed and sealed in their presence. Then 
he shall declare to the notary,in presence of the 
witnesses, that that paper contains his testament 
written by himself, or by another by his direction, 
and signed by him, the testator. The notary shall 
then draw up the act of superscription, which shall 
be written on that paper, or on thesheet that serves 
as its envelope, and that act shall be signed by the 
testator, and by the notary and the witnesses. 
Civil Code La. art. 1584. 


NAMIUM VETITUM 


N. 


W. An abbreviation of “Novelle,” the 
Novels of Justinian, used in citing them. 
Tay]. Civil Law, 24.) 

W. A. An abbreviation for “non alieca- 
tur,” it is not allowed, 


W. B. An abbreviatien for “nota bene,” 
matk well, observe; also “gudla bona,” no 
goods. 


WN.D. Anabbreviation for “Northern Dis- 
trict.” 
W.H.i. <An abbreviation for “non est 


inventus,” he is not found. 


W.L. An abbreviation of “non ligquet,” 
(which see.) 


W.P. An abbreviation for “notary pub- 
lic;” also for “nisi prius,” (q. v.) 


N.&. An abbreviation for “New Re- 
ports;” also for “not reported,” and for “non- 
resident.” 


W.S. An abbreviation for “New Series;” 
also for “New Style.” 


NAAM. ‘The attaching or taking of 
movable goods and chattels, called “vif” or 
“mort” according as the chattels were living 
or dead. ‘Termes de la Ley. 


WABOB. Originally the governor of a 
province under the Mogul government of Hin- 
dostan, whence it becume a mere title of any 
man of high rank, upon whom it was con- 
ferred without any office being attached to it. 
Wils. Indian Gloss. 


NAIF. L. Fr. 
bond woman. 


WAIL. <A lineal measure of two inches 
and a quarter. 


WAKED. <As a term of jurisprudence, 
this word is equivalent to bare, wanting in 
necessary conditions, incomplete, as a nuked 
contract, (nudum pactum,) t. e.,a contract 
dJevoid of consideration, and therefore invalid; 
or simple, unilateral, comprising but a single 
element, as a nuked authority, ¢. e.one which 
is not coupled with any interest in the agent, 
but subsists for the benefit of the principal 
alone, | 


NAKED CONFESSION. A confession 
of crime which is unsupported by any evi- 
dence of the commission of the offense. 


A villein; a bornslave; 4 


a i 


WAKED DEPOSIT. A bailment of goods 
to be kept for the depositor, without hire or 
reward on either aide. 


WAKED POWER. One which is sim- 
ply collateral and without interest in the do- 
nee, which arises when, toa mere stranger, 
authority is given of disposing of an interest, 
in which he had not before, nor has by tiie 
instrument creuting the power, any estate 
whatsoever. Cuines, Cas. 15. 


WAKED TRUST. A dry or passive 
trust; one which requires no action on the 
part of the trustee, beyond turning over 
money or property to the cestué que trust. 


WAM. In old English law. <A distress 
or seizure of chattels. 

As a Latin conjunction, for; because. 
Often used by the old writers in introducing 
the quotation of a Latin maxim. 


NAMARE. L, Lat. 
take, seize, or distrain. 


In old records. Te 


NAMATIO. L. Lat. In old English 
and Scotch law. A distraining or taking of 
a distress; an impounding. Spelman. 


NAME, Thedesignation of an individnal: 
person, or of a firm or corperation. In law 
a man cannot have more than one Christian 
name. 1 Ld. Raym. 562. 


NAME AND ARMS CLAUSE. The 
popular name in English law for the clause, 
sometimes inserted in a will or settlement by 
which property is given to a person, for thie 
purpose of imposing on him the condition 
that he shall assume the surname and arms 
of the testator or settlor, with a direction 
that, if he neglects to assume or discontinues 
the use of them, the estate shall devolve on 
the next person in remainder, and a provision 
for preserving contingent remainders. 3 
Dav. Pree. Conv. 277; Sweet. 


NAMIUM. L. Lat. Inold English law. 
A taking; a distress. Spelman. Things, 
goods, or animals taken by way of distress, 
Simplex namium, a simple taking or pledge. 
Bract. fol. 2036. 


NAMIUM VETITUM. An unjust tak- 
ing of the cattle of another and driving them 
to an unlawtul place, pretending damage 
done by them. 3 Bl. Comm. 149. 


\y 


NANTES, EDICT OF i 


NANTES, EDICT OF. A. celebrated 
law for the security of Protestants, made by 
Henry IV. of France, and revoked by Louis 
XIV., October 2, 1685. 


NANTISSEMENT, in French law, is the 
contract of pledge; ifof a movutle, it is called 
“gage,” and it of an insmovable, it is called 
“antichrise.” Brown. 


NARR. A commonabbrevation of “nar- 


99 


ratio,” (q.0.}) A deeluration in ap action. | 


Jacob. 


NARRATIO. One of the common law 
names for a plaintiff's count or declaration, 
a3 being a narrative of the facts on which he 
Telies. 


NARRATIVE. InScoteh conveyancing. 
That part of a deed which describes the gran- 
tor, and person in whose favor the deed is 
granted, and slates the cause (consideration) 
of granting. Bell. 


NARRATOR. A countor;a pleader who 
draws narrs. Serviens narrator, a serjeant 
at law. Flota, 1. 2, c. 37. 


WARROW SEAS. Those seas which run 
between two coasts not far apart. The term 
is sometimes applied to the English channel. 
Wharton. 


NASCITURUS. Lat. That shall herc- 
after be born. A term used in-mi:rriage set- 
Uements to designate the future issue of the 
marriage, as distinguished from “natus,” & 
child already born. 


NATALE. The state and condition of a 
man acquired by birth. 


NATI ET NASCITURI. Born and to 
be born, All heirs, near and remote, 


NATIO. 
Cowell. 


WATION. A people, or aggregation of 
men, existing in the form of an organized 
jural society, inhabiting a distinet portion of 
the earth, speaking the same language, using 
the same customs, possessing historic contin- 
uity, and distinguished from other like groups 
by their raciai origin and characteristics, and 
generally, but not necessarily, living under 
the same government and sovereignty. 

Besides the element of autonomy or self-govern- 
Tent, that is, the independence of the community 
ag awhols from the interference of any foreign 
power in its affairs or any subjection to such power, 
itis further necessary to the constitution of a na- 
tion that it should be an organized jural society, 
thatis, both governing its own Members by regular 
laws, and defining and protecting their rights, and 


In old records. A native place. 


{ 


NATIONAL DOMICILE 


respecting the rights and duties which attach to it 
as a constituent member of the family of nations. 
Such a society, says Vattel, has her affairs and her 
interests; she deliderates and takes resolutions in 
common; thus becoming a moral person, who pos- 
88508 an understanding and will peculiar to her- 
self, and is susceptible of obligations and rights. 
Vattel, $$ 1,2. 

The words “nation” and “people” are frequently 
used as synonyms, but there is a great difference 
between them. A nation is an aggregation of men 
speaking the same language, having the same cus- 
toms, and endowed with certain moral qualities 
whieh distinguish them from other groups of a 
like nature. It would follow from this definition 
that a nation is destined to form only one site, and 
that it constitutes one indivisible whole. Never- 
theless, the history of every age presents us with 
nations divided into several states. Thus, Italy 
was for centuries divided among several different 
governments. The people is the collection of all 
citizens without distinction of rauk or order. All 
men living under the same government compose 
the peapte of the state. In relation to the state, 
the citizens constitute the people; in relution to 
the buman race, they constitute the nation, A 


, free nation is one not subject to a foreign govern- 


ment, whatever be the constitution of the state; a 
people is frea when all the citizens can participate 
iu acertain measure in the direction and in the 
examination of public affairs. The people is the 
political body brought into existence by community 
of laws, and the people may perish with these 
laws. The nation is the moral body, indepsndent 
of political revolutions, because it is constituted 
by inborn qualities which render it indissoluble. 
The stute is the people organized into a political 
body. Lalor, Pol. Ene. 8. v. 

In American constitutional law the word 
“state” is applied to the several members of 
the American Union, while the word “aa- 
tion” is applied to the whole body of the peo- 
ple embraced within the jurisdiction of the 
federal government, Cooley, Const. Lim. 1, 
See 7 Wall. 720. 


WATIONATL BANK. A bank incorpo- 
tated and doing business under the laws of 
the United States, as distinguished from a 
siate bank, which derives its powers from 
the authority of a particular state. 


NATIONAL CURRENCY. Notes is- 
sued by national banks, and by the United 
States government. 


NATIONAL DEBT. The money owing 
by government to some of the public, the in- 
terest of which is paid out of the taxes raised 
by the whole of the public. 


NATIONAL DOMAIN. A term some- 
times applied to the aggregate of the property 
owned direetly by a pation. 


NATIONAL DOMICILE. The domi- 
cile of a person, sonsidered as being within 
the territory of a particular nation, and not 


NATIONAL GOVERNMENT 


N with reference to a particular locality or sub- 


division of a nation. 


NATIONAL GOVERNMENT. The 
government of a whole nation, as distin- 
guished from that of a local or territorial di- 
vision of the nation, and also as distinguished 
from that of a league or confederation, 

“A natlonel government is a government of the 
people of a Single state or nation, united as a com- 
munity by what is termed the ‘social compact,’ 
and possessing complete and perfect supremacy 
over persons and things, so far as they can be 
made the lawful cbjects of civil governmest. A 
Jederal goverument is distinguished from a na- 
tional government, by its being the government of 
a community of independent and sovereign states, 
united by compact.” 6 Ohio St. 393. 


NATIONALITY. That quality or char- 
acter which arises from the fact of a person’s 
belonging to a nation or state, Nationality 
determines the political status of the indi- 
vidual, especially with reference to allegi- 
ance; while domicile determines his civil 
status, Nationality arises either by birth or 
by naturalization. According to Saviygny, 
“nationality” is also nsed as opposed to “ter- 
ritoriality,” for the purpose of distinguish- 
ing the case of a nation having no national 
territory; e.g., the Jews. 8 Sav. Syst. § 346; 
Westl. Priv. Int. Law, 4. 


NATIONALIZACION. In Spanish and 
Mexican law. Nationalization. “’The na- 
tionalization of property is an act which de- 
notes tht it has become that of the nation by 
some process of law, whereby private indi- 
viduals or corporations have been for speci- 
fied reasons deprived thereof.” Tall, Mex. 
Law, § 749. 


WATIONS, LAW OF. 
TIONAL Law. 


NATIVA, Inold Englishlaw. A niefe 
or female villein. So called because for the 
most part bond by nativity. Co. Litt. 1226. 


See INTERNA=- 


NATIVE. A natural-born subject or 
citizen; a denizen by birth; one who owes 
his domicile or citizenship to the fact of his 
birth within the country referred to. The 
terin may also include one born abroad, if 
his parents were then citizens of the country, 
and not permanently residing in foreign 
parts. 


NATIVI CONVENTIONARIL Vil- 
leins or bondmen by contract or agreement. 


NATIVI DE STIPITE, 
bondmen by birth or stock. 


Villeing or 
Cowell. 


3uo 


NATURAL ALLEGIANCE 


NATIVITAS. In old Englishlaw. Vil 
lenage; that state in which men were born 
slaves. 2 Mon, Angl. 643. 


NATIVO HABENDO. In old English 
law. A writ which lay for a lord when 
his villein had run away from him. It was 
directed to the sheriff, and commanded him 
to apprehend the villein, and to restore him 
together with bis goods to thelord. Brown. 


WATIVUS. A servant born, Spelman. 


Natura appetit perfectum; itu et lex. 
Nature covets perfection; so does law also. 
Hob. 144. 


NATURA BREVIUM. The name of 
an ancient collection of original writs, accom. 
panied with brief comments and explanations, 
compiled in the time of Mdward Ill. This is 
commonly called “Old Natura Brevium,” (or 
“O. N. B.,”) todistinguish it from Pitzher- 
bert’s Natura Brevium, a later work, cited 
as “EF. N. B,” or “Fitzh, Nat. Brey.” 


Natura fide jussionis sit strictissimi 
juris et non durat vel extendatur de re 
ad rem, de persona ad personam, de 
tempore ad tempus. The nature of the 
contract of suretyship is sérictissimé juris, 
and cannot endure nor be extended from 
thing to thing, from person to person, er 
from time to time. Burge, Sur. 40. 


Watura non facit saltum; ita nec lex. 
Nature makes no leap, [no sudden or irregu- 
lar movement;] so neither does law Co, Litt. 
238. Applied in old practice to the regular 
observance of the degrees in writs of entry, 
which could not be passed over per salium. 


Watura non fucit vacuum, nec lex su- 
pervacuum. Nature makes no vacuum, the 
law nothing purposeless. Co. Litt, 79. 


MWaturs vis maxima; natura bis max- 
ima. The foree of nature is greatest; nature 
is doubly great. 2 Inst. 564. 


NATURAL AFFECTION. Such as 
naturally subsists between near relatives, as 
a futher and child, brother and sister, hus- 
band and wife,- This is regarded in law as a 
good consideration. 


NATURAL ALLEGIANCE. In En- 
glish law. That kind of allegiance which 
is due froin all men born within the king’s 
dominions, immediately upon their birth, 
which is intrinsic and perpetual, and cannot 
be divested by any ach of their own, 1 Bi. 
Comm. 369; 2 Kent, Comm. 42. 


NATURAL ALLEGIANCE 801 


In Ameritan law. The allegiance due 
from citizens of the United States to their 
native country, and also from naturalized 
citizens, and which cannot be renounced 
without the permission of government, to be 
declared by law. 2 Kent, Comm. 43-49. 

It differs from loca? allegiance, which is 
temporary only, being due from an alien or 
stranger born for so long a time as he contin- 
ues within the sovereign’s dominions and 
protection. Fost. Cr. Law, 184. 


NATURAL-BORN SUBJECT. In En- 
glish law. One born within the dominions, 
or rather within the allegiance, of the king 
of England. 


NATURAL CHILD. A bastard; a child 
born out of lawful wedlock. But in a stat- 
ute declaring that adopted shall have all the 
rights of “natural” children, the word “nat- 
ural” was used in the sense of “legitimate.” 
9 Amer. Law Reg. (O. 8.) 747. 

In Louisiana. Illegitimate children who 
have been adopted by the father. Civil Code 
La. art. 220. 

In the civillaw. Aehild by natural re- 
lation or procreation; a child by birth, as 
distinguished from achild by adoption, Inst. 
ot, pr; 1d.3, 1, 2; Id. 3, 8 pr. 

A child by concubinage, in contradistine- 
tion toa child by marriage. Cod. 5, 27. 


NATURAL DAY. That space of time 
included between the rising and the setting 
of the sun, See Day. 


NATURAL DEATH. 1. Death result- 
ing from disease, or from natural forces 
without the concurrence of man’s agency; 
as distinguished from “violent” death 

2. Physical death; the separation of soul 
and body; as distinguished from “civil” 
death, which is the loss of rights and ju- 
ristic personality as a legal consequence of 
certain acts. 


WATURAL EQUITY. A term some- 
times employed in works on jurisprudence, 
possessing no very precise meaning, but used 
as equivalent to justice, honesty, or morali- 
ty in business relations, or man’s innate 
seuse of tight dealing and fair play. 


Inasmuch as equity, as now administered,is a 
complex system of rules, doctrines, and precedents, 
and possesses, within the range of its own fixed 
principles, but little more clasticity than the law, 
the term “natural equity” may be understood to 


denote, in a goneral way, that which strikes the | 


ordinary conscience and sense of justice as being 
fair, right, and equitable, in advance of the ques- 
tion whether the technical jurisprudence of the 
chancery courts would so regard it. 

AM. DICT. LAW—51 


NATURAL LIFE 


NATURAL FOOL. A person born 
without understanding; a born fool or idiot. 
Sometimes called, in the old books, a “nat- 
ural.” 


NATURAL FRUITS. The produce of 
the soil, or of fruit-trees, bushes, vines, etc., 
which are edible or otherwise useful or serve 
for the reproduction of their species. The 
term is used in contradistinction to “artificial 
fruits,” ¢. e., such as by metaphor or analogy 
are likened to thefruits of the earth. Ofthe 
latter, interest on money is an exanple. 


NATURAL HEIRS. Ina statute of 
distributions, this term may be understood 
and interpreted as meaning “legitimate 
heirs,” and hence may include an adopted 
child. 9 Amer. Law Reg. (O. S.) 747. 


NATURAL INFANCY. A period of 
non-responsible life, which ends with the 
seventh year. Wharton. 


NATURAL LAW. The ruleand dictate 
of right reason, showing the moral deformity 
or moral necessity there is in any act, ac- 
cording to its suitableness or unsuitableness 
to a reasonable nature. ‘ayl. Civil Law, 99, 

This expression, “natural law,” or jus 
naturale, was largely used in the philosoph- 
ical speculations of the Roman jurists of the 
Antonine age, and was intended to denote a 
system of rules and principles for the guid- 
ance of human conduct which, independent- 


| ly of enacted law or of the systems peculiar 
| to any one people, might he discovered by 


the rational intelligence of man, and would 


| be found to grow out of and conform to his 


nature, Meaning by that word his whole 
mental, moral, and physical constitution. 
The point of departure for this conception 
was the Stoic doctrine of a life ordered “ac- 
eording to nature,” which in its turn rested 
upon the purely supposititious existence, in 
primitive times, of a “state of nature;” that 
is, a condition of society in which men uni- 
versally were governed solely by a rational 
and consistent obedience to the needs, im- 
pulses, and promptings of their true nature, 
such nature being as yet undefaced by dis- 
honesty, falsehood, or indulgence of the baser 
passions. See Maine, Anc. Law, 50, et seq. 


NATURAL LIBERTY. The power of 
acting as one thinks fit, without any restraint 
or control, unless by the law of nature. 1 
Bl. Comm. 125.- 


NATURAL LIFE. The period between 
birth and natural death, as distinguished 
from civil death, (g. v} 


N 


NATURAL OBLIGATION 


NATURAL OBLIGATION. One which 
Jacks legal sanction, and therefore cannot be 
enforced in a court of justice, but which im- 
poses a moral duty upon the person bound. 


NATURAL PERSONS. Such as are 
formed by nature, as distinguished from 
artificial persons, or corporations, formed by 
human laws for purposes of society and goy- 
ernment. Wharton. 


NATURAL PRESUMPTION. In the 
law of evidence. ‘That species of presump- 
tion, or process of probable reasoning, which 
is exercised by persons of ordinary intelli- 
gence, in inferring one fact from another, 
without reference to any technical rules. 
Otherwise called “prasumptio hominis.” 
Burrill, Cire, By. 11, 12, 22, 24. 


NATURAL RIGHTS. Those rights 
which are plainly assured by natural iaw; 
such as the right to life, to personal liberty, 
etc. 


NATURAL YEAR. In old English law. 
That period of time in which the sun was 
supposed to revolve in its orbit, consisting 
of 365 days and one-fourth of a day, or six 
hours. Braet. fol. 3598. 


Naturale est quidlibet dissolvi eo modo 
quo ligatur. Itis natural for a thing to be 
unbound in the same way in which it was 
bound. Jenk. Cent. 66; Broom, Max. 877. 


NATURALEZA. InSpanishlaw. The 
state of a natural-born subject. While, New 
Recop. b. 1, tit. 5, ¢. 2. 


NATURALIZATION. Theact of adopt- 
ing an alien into a nation, and clothing him 
with all the rights possessed by a natural- 
born citizen. 


NATURALIZE. To confer citizenship 
upon an alien; to make a foreigner the same, 
in respect to rights and privileges, as if he 
were a native citizen or subject. 


NATURALIZED CITIZEN. One why, 
peing an alien by birth, has received citizen- 
ship under the laws of the slate or nation, 


NATURALLY. Damages which “nat- 
urally” arise from a breach of eontract 
are such as arise in the usual course of 


things, from the breach itself, or such as | 


naiy reasonably be supposed to have been 
contemplated by the parties when making 
the contract as the probable result of the 
breach. 71 Cal. 164, 11 Pac. Rep. 882. 


NATUS. Lat. Born, as distinguished 
from nasciturus, about to be born. 


802 


NAVAL COURTS 


NAUCLERUS. Lat. In the civil law. 
The master or owner of a merchant vessel, 
Calvin. 


NAUFRAGE. In French maritime law, 
Shipwreck. “The violent agitation of the 
waves, the impetuous force of the winds, 
storm, or lightning, may swallow up the ves- 
sel, or shatter it, in such a manner that 
nothing remains of it but the wreck; this is 
called ‘ making shipwreck,’ (fatre naufrage.) 
The vessel may also strike or run aground 
upon a bank, where it remains grounded, 
which is called ‘échouement;’ it may ba 
dashed against the coast or a rock, which is 
called ‘tris,’ an accident of any kind may 
sink it in the sea, where it is swallowed up, 
which is called ‘sombrer’” 8 Pard. Droit 
Commer. § 643. 


NAUFRAGIUM. Lat. 


NAUGHT. In old practice. Bad; de- 
fective. “The bar is naughi.”. 1 Leon. 77, 
“The avowry is naught.” 65 Mod. 73. “Tha 
plea is undoubtedly naught.” 10 Mod. 829, 
See 11 Mod. 179, 


WAULAGE. The freight of passengers 
in aship. Johnson; Webster. 


WAULUM. In the civil law. The 
freight or fare paid for the transportation of 
cargo or passengers over the sea in a vessel. 
This is a Latinized form of a Greek word. 


NAUTA. Lat. 
time law. 
Calvin. 

Any one who is on board a ship for the 
purpose of navigating her. 

The employer of aship. Dig. 4, 9, 1, 2. 


NAUTICAL ASSESSORS. Expe- 
rienced shipmasters, or other persons having 
special knowledge of navigation and nautical 
affairs, who are called to the assistance of a 
court of admiralty, in difficult cases invely- 
ing questions of negligence, and who sit 
with the judge during the argument, and 
give their advice upon questions of seaman- 
ship or the weight of testimony. 19 Fed, 
Rep. 559; 2 Curt. 369. 


NAVAGIUM. In old English law. A 
duty on certain tenants to carry their lord’s 
goods in a ship. 

NAVAL. 
(9- ©) 

NAVAL COURTS. Courts held abroad 
in cerlain cases to inquire into complaints by 
the master or seamen of a British snip, or as 


Shipwreck. 


In the civil and mari- 
A sailor; one who works a ship. 


Appertaining to the navy, 


NAVAL COURTS-MARTIAL 


to the wreek or abandonment of a British 
ship. A naval court consists of three, four, 
or five members, being officers in her ma- 
jesty’s navy, consular officers, masters of 


British merchant ships, or British merchants... 


It has power to supersede the master of the 
ship with reference to which the inquiry is 
held, to discharge any of the seamen, to de- 
cide questions us fo wages, send home of- 
fenders for trial, or try certain offenses in a 
BumMmMary manner. Sweet. 


NAVAL COURTS-MARTIAL.  Tri- 
bunals for the trial of offenses arising in the 
management of public war vessels. 


NAVAL LAW. The system of regula- 
tions and principles for the government of 
the navy. 


NAVAL OFFICER. An officer in the 
navy. Also an important functionary in the 
United States custom-houses, who estimates 
duties, signs permits and ciearances, certifies 
the collectors’ returns, ete. 


NAVARCHUS. In the civil law. The 
master or commander of a ship; the captain 
of a man-of-war. 


NWAVICULARIUS. In the civil law. 
‘The master or captain of a ship. Calvin. 


NAVIGABLE. Capable of being navi- 
gated; that may be navigated or passed over 
in ships or vessels. But tho term is gen- 
erally understood in a more restricted sense, 
viz., subject to the ebb and flow of the tide. 


“The doctrine of the common law as to the nay- 
{gability of waters has no application in this coun- 
try. Here the ebb and flow of the tide do not con- 
stitute the usual test, as in England, or any testat 
all, of the navigability of waters. There no waters 
are navigable in fact, or at least to any considera- 
ble extent, which are not subject to the tide, and 
from this circumstance tide-water and navigable 
water thore signify substantially the same thing. 
But in this country the case is widely different. 
Some of our rivers are as navigable for many 
hundreds of miles above as they are below the lim- 
its of tide-water, and some of them are navigable 
for great distances by large vessels, which are not 
even affected by the tide at any point during their 
entire length. A different test must therefore be 
applied to determine the navigability of our riv- 
ers, and that is found in their navigable capacity. 
Those rivers must be regarded as public navigable 
rivers, in law, which are navigable infact. And 
they are navigable in fact when they are used, or 
are susceptible of being used, in their ordinary 
condition, as highways for commerce, over which 
trade and travel are or may be conducted in the 
eustomary modes of trade and travel on water. 
And they constitute navigable waters of the 
United States, within the meaning of tho acts of 
congress, in contradistinction from the navigable 
waters of the states, when they form, in their or- 


803 


NAVIS 


finary condition, by themselves, or by uniting 
with other waters, a continued highway over 
which commerce is or may be carried on with oth- 
er states or forcign countries in the customary 
modes in which such commerce is conducted by 
water.” Field, J., 10 Wall. 563. 

It is true that the flow and ebb of the tide is not 
regarded, in this country, as the usual, or any real, 
test of navigability; and it only operates to im- 
press, prima facie, the character of being publie 
and navigable, and to place the onus of proof on 
the party aillrming the contrary. But the naviga- 
bility of tide-waters does not materially depend 
upon past or present actual public use. Such use 
may establish navigability, but it is not essential 
to give the character. Otherwise, streams in new 
and unscttled sections of the country, or where the 
increase, growth, and development have not becn 
sufficient to call them into public use, would be ex- 
cluded, though navigable in fact, thus making the 
character of being a navigable stream dependent 
on the occurrence of the necessity of public use. 
Capability of being used for useful purposes of 
navigation, of trade and travel, in the usual and 
ordinary modes, and not the extent and manner of 
the use, is the test of navigability. 82 Ala. 165, 2 
South, Rep. 718. 


NAVIGABLE RIVER or STREAM. 
A river or stream in which the tide ebbs and 
flows, or as far as the tide ebbs and flows. 
3 Kent, Comm. 412, 414, 417, 418; 2 Hil. 
Real Prop. 90, 91. 


NAVIGABLE WATERS. Those wa- 
ters which afford a channel for useful com- 
merce. 20 Wall. 480. 


NAVIGATE, To conduct vessels through 
navigable waters; to use the waters ag a 
means of communication. 


NAVIGATION. The act or the science 
or the business of traversing the sea or other 
waters in ships or vessels. 


NAVIGATION ACTS, tn English law, 
were Various enactments passed for the pro- 
tection of British shipping and commerce as 
against foreign countries. For a sketch of 
their history and operation, see 8 Stepli. 
Comm, They are now repealed. See 16 & 
17 Vict. c. 107, and 17 & 18 Viet. ec. 5, 120. 
Wharton. 


NAVIGATION, RULES OF. Rules 
and regulations adopted by commercial na- 
tions to govern the sleering and manage- 
ment of vessels approaching each other at sea 
so as to avoid the danger of collision or foul 
ing. 


NAVIRE. Fr. InFrenchlaw. Aship 
Emerig. Traité des Assur. c. 6, § L 


WAVIS. Lat. A ship; a vessel. 


N 


NAVIS BONA 


NAVIS BONA. Lat. A good ship; one 
that was staunch and strong, well caulked, 
and stiffened to bear the sea, obedient to her 
helm, swift, and not unduly affected by the 
wind. Calvin. 


NAVY. A fleet of ships; the aggregate 
of vessels of war belonging to an independ- 
ent nation. 


WAVY BILLS. Bills drawn by officers 
‘of the English navy for their pay, ete. 


NAVY DEPARTMENT. One of the 
executive departments of the United States, 
presided over by the secretary of the navy, 
and having in charge the defense of the coun- 
try by sea, by means of ships of war aud other 
naval appliances. 


WAVY PENSION. A pecuniary allow- 
ance made in consideration of past services 
of some one in the navy. 


NWAAZERANNA. A sum paid to govern- 
ment as an acknowledgment fora grant of 
lands, or any public office. Ene. Lond. 


WAZIM. In Hindu law. Composer, ar- 
ranger, adjuster. The first officer of a prov- 
ince, and minister of the departinent of 
criminal justice. 


NE ADMITTAS. Lat. In ecclesiastical 
law. The name of a prohibitory writ, di- 
rected to the bishop, at the request of the 
plaintiff or defendant, where a guare impedit 
is pending, when either party fears that the 
bishop will admit the other’s clerk pend- 
ing the suit between them. Fitzh, Nat. 
Brev. 37. 


NE BAILA PAS. 
deliver. 
livery to the defendant of the thing sued for. 


L. Fr. Hedid not 


NH DISTURBA PAS. L. Fr. (Does 
or did not disturb.) In English practice. 
The general issue or general plea ib guave 
impedit, 3 Steph. Comm. 663. 


NE DONA PAS, or NON DEDIT. 
The general issue in a formedon, now abol- 
ished. It denied the gift in tail to have been 
made in manner and form as alleged; and 
was therefore the proper plea, if the tenant 
meant to dispute the fact of the gift, but did 
not apply to any other case. 5 Hast, 289. 


NE EXEAT REGNO, Lat. In English 
practice. A writ which issues to restrain a 
person from leaving the kingdom. It was for- 
merly used for political purposes, but is now 
only resorted to in equity when the defeud- 


804 


A plea in detinue, denying the de- | 


NE UNQUES EXECUTOR 


ant is about to leave the kingdom; it is only 
in eases where the intenticn of the party to 
leave can be shown that the writ is granted. 


NE EXEAT REPUBLICA. Lat. In 
American practice. A writ similar to that 
of née exeat regnu, (g. v.,) available to the 
plaintiff in a civil suit, under some circum- 
stances, wlien the defendant is about to leave 
the state. 


NE GIST PAS EN BOUCHE. L. Fr, 
It does not lie in the mouth. A common 
phrase in the old books. Yearb. M. 8 Edw. 
Pha: 


NE INJUSTE VEXES. Lat. In old 
English practice. A probibitory writ, com- 
manding a lord not to demand from the ten- 
ant more services than were justly due by 
the tenure under which his ancestors held. 


NE LUMINIBUS OFFICIATUR., Lat, 
In the civil law. The name of a servitude 
which restrains the owner of a house from 
making such erections as obstruct the light 
of the adjoining house. Dig. 8, 4, 15, 17. 


NE QUID IN LOCO PUBLICO VEL 
ITINERE FIAT. Lat. That nothing 
shall be done (put or erected) in a public 
place or way. The title of an interdict in 
the Roman law. Dig. 43, 8. 


NE RECIPIATUR. Lat. Thatit be not 
received. A caveat or warning given to a 
law officer, by a party in a cause, not to re- 
ceive the next proceedings of his opponent. 
1 Sell. Pr. 8. 


NH RECTOR PROSTHERNET AR- 
BORES. L. Lat. The statute 35 Edw. I. 
§ 2, prohibiting rectors, ¢. e., parsons, from 
eutting down the trees in church-yards. In 
Rutland v. Green, 1 Keb. 557, it was extended 
to prohibit them from opening new mines and 
working the minerals therein. Brown. 


NE RELESSA PAS. L. Fr. Did not 
release. Where the defendant had pleaded 
a release, this was the proper replication by 
way of traverse. 


NE UNQUES ACCOUPLE. L. Fr 
Never married. More fully, ne wnqzes ac- 
couple en lotall matrimonie, never joined in 

| lawful marriage. The name of a plea in the 
action of dower unde nihil habet, by which 
the tenant denied that the dowress was ever 
lawfully married to the decedent. 


NE UNQUES EXECUTOR. L. Fr. 
Never executor. The name of a plea by 
| Which the defendant denies that he is an ex- 


a 


NE UNQUES SEISE QUE DOWER 805 


ecutor, as he is alleged to be; or that the 
plaintiff is an executor, as he claims to be. 


NE UNQUES SEISE QUE DOWER. 
L. Fr. (Never seised of a dowable estate.) 
In pleading. The general issuein the action 
of dower wnde nil hadet, by which the tenant 
denies that the demandant’s husband was ever 
seised of an estate of which dower might be 
had. Rose. Real Act. 219, 220. 


NE UNQUES SON RECEIVER. L. 
Fr. In pleading. The name of a plea in an 
action of account-render, by which the de- 
fendant denies that be ever was receiver of 
the plaintiff 12 Vin. Abr. 183. 


NE VARIETUR. Lat. It must not be 
altered. A phrase sometimes written by a 
potery upon a bill er note, for the purpose of 
establishing its identity, which, however, 
does not affect its negotiability. & Wheat. 
$38. 


NEAP TIDES. Those tides which hap- 
pen between the full and change of the moon, 
twiee in every twenty-four hours. 18 Cal. 
2i. 


WEAR. This word, as applied to space, 
can have no positive or precise meaning. It 
is a relative term. depending for its signifi- 
cation on the subject-matter in relation to 
which it is used and the circumstances under 
which it becomes necessary toapply it to sur- 
rounding objects. 5 Allen, 227. See, also, 
44 Mo. 202; 31 Fed. Rep. 872. 


NEAT, NET. The clear weight or quan- 
tity of an article, without the bag, box, keg, 
or other thing in which it may be enveloped. 


NEAT CATTLE. Oxen or heifers. 
“Beeves” may include neat stock, but all 
neat stock are not beeves. 36 Tex. 324; 32 
Tex 479. 


NEAT-LAND. 
manry, Cowell. 


NEATNESS. In pleading. The state- 
ment in apt and appropriate words of all the 
necessary facts, and no more. Lawes, Pl. 62. 


Nee curia deficeret in justitia exhi- 
benda. Nor should the court be deficient in 
showing justice. 4 Inst. 63. 


Land let out to the yeo- 


Wee tempus nec locus occurrit regi. 
Jenk, Cent. 190. Neither time nor place af- 
fects the king. 


Nec veniam effuso sanguine casus 
habet. Where vlood is spilled, the case is 
unpardonable. 8 Inst. 57. 


NECESSARY DOMICILE 


Nee veniam, leso nunmine, casus ha- 
bet. Wherethe Divinity isinsulted, the case 
is unpardonable. Jenk. Cent. 167. 


NECATION. The act of killing. 


NECESSARIES. Things indispensable, 
or things proper and useful, for the suste- 
nance of humanlife. This is arelative term, 
and its meaning will contract or expand ac- 
cording to the situation and social condition 
of the person referred to. 

In reference to the contracts of infants, 
this term is not used in its strictest sense, nor 
limited to that which is required te sustain 
life. Those things which are proper and 
suitable to each individual, according to his 
circumstances and condition in life, are nec- 
essaries, if not supplied from some other 
source. 12 Cush. 513. See, also, 133 Mass. 
504; 114 Mass. 424; 3 C. P. Div. 401; 81 
Conn. 306. 

In the case of ships the term “necessaries” 
means such things as are fit and proper for 
the service in which the ship is engaged, and 
such as the owner, being a priident man, 
would have ordered if present; e. g., anchors, 
rigging, repairs, victuals. Maude & P. Shipp. 
71, 118. The master may hypothecate the 
ship for necessaries supplied abroad 80 as ta 
bind the owner. Sweot. 


Necessarium est quod non potest aliter 


se habere. That is necessary which cannot 
be otherwise. 
NECESSARIUS. Lat. Necessary; un- 


avoidable; indispensable; not admitting of 
choice or the action of the will; needful, 


NECESSARY. As used in jurisprudence, 
the word “necessary” does not always import 
an absolute physical necessity, so strong that 
one thing, to which another may be termed 
“necessary,” cannot exist without that other. 
It frequently imports no more than that one 
thing is convenient or useful or essential to 
another. ‘To employ the means necessary to 
an end is generally understood as employing 
any means Caleulaied to produce the end, and 
not as being confined to those single means 
without which the end would be entirely un- 
attainable. 4 Wheat. 316, 413. 


NECESSARY DEPOSIT. The neces- 
sary deposit is that which has been com- 
pelled by some accident; such as fire, falling 
down of a house, pillage, shipwreck, or other 
casualty. Civil Code La. art. 2964. 


NECESSARY DOMICILE. That kind 
of domicile which exists by operation of law, 


= 


NECESSARY IMPLICATION 806 


| 


N as distinguishel from voluntary domicile or 


domicile of choice. Phillim. Dom, 27-97. 


WECESSARY IMPLICATION, In con- 
atruing a will, necessary implication means 
not natural necessity, but so strong a proba- 
bility of intention that an intention contrary 
to that which is imputed to the testator can- 
not be supposed. J Ves. & B. 466. 


NHCESSARY INTROMISSION. In 
Scotch law. 
jnterference where a husband or wife con- 
tinues in possession of the other’s goods 


aiter their decease, for preservation. Whar- 
ton. 
NECESSARY REPAIRS. Necessary 


repairs (for which the master of a ship may 
lawfully bind the owner) are such as are 
reasonably fit and proper for the ship under 
the circumstances, and not merely such as 
are absolutely indispensable for the safety of 
the ship or the accomplishment of the voy- 
age. 8Sum. 237, 


NECESSITAS. Lat. Necessity; a force, 
power, or influence which compels one to act 
against his will. Calvin. 


NECESSITAS CULPABILIS. Cul 
pable necessity; unfortunate necessity; neces- 
sity which, while it excuses the act done un- 
der its compulsion, does not leave the doer 
entirely free from blame. ‘The necessity 
which compels a man to kill another in self- 
defense is thus distinguished from that which 
requires the killing of a felon. See 4 Bl. 
Cori. 157. 


Necessitas est lex temporis et loci. 
Necessity is the law of time and of place. 1 
Hale, P. C. 54. 


Necessitas excusat aut extenuat de- 
lictum in ecapitalibus, quod non opera- 
tur idem in civilibus. Necessity excuses 
or extenuates a delinquency in capital cases, 
which lias not the same operation in civil 
cases. Dac. Max. 


Wecessitas facit licitum quod alias 
non est licitum. 10 Coke, 61. Neces- 
sity makes that lawful which otherwise is 
not lawful. 


Necessitas inducit privilegium quoad 
jura privata. Bac. Max. 25. Necessity 
gives a privilege with reference to private 
rights. The necessity involved in this maxim 
is of three kinds, viz.: (1) Necessity of self- 
preservation; (2) of obedience; and (3) ne- 
cessity resulting from the act of God, or of a 
stranger. Noy, Max. 32. 


That kind of intromission or | 


| cula irridet. 


NECESSITY, HOMICIDE BY 


Wecessitas non habet legem. WNeces- 
sity has no law. Plowd. 18a. “Necessity 
shall be a good excuse in our law, and in 
every other Jaw.” Id. 


Necessitas publica major est quam 
privata. Public necessity ia greater than 
private. “Death,” it has been observed, “is 
the last and furthest point of particular ne- 
cessity, and the law imposes it upon every 
subject that he prefer the urgent service of 
his king and country before the safety of his 
life.” Noy, Max. 34; Broom, Max. 18. 


Necessitas quod cogit, defendit. Ne- 
cessity defends or justifies what it compels. 
1 Hale, P. C. 54. Applied to the acts of a 
sheriff, or ministerial officer, in the execn- 
tion of his office. Broom, Max. 14. 


Necessitas sub lege non continetur, 
quia quod alias non est licitum neces- 
sitas facit licitum. 2 Inst.d2t. Necessity 


‘is not restrained by law; since what other- 


wise is not lawful necessity makes lawful. 


Necessitas vincit legem. Necessity 
overrules the law. Hob. 144; Cooley, Const. 
Lim, (4th Ed.) 747. 


Necessitas vincit legem; legum vin- 
Hob. 144. Necessity over- 
comes law; it derides the fetters of laws. 


NECESSITUDO. Inthecivillaw. An 
obligation; a close connection; relationship 
by blood. Calvin. 


NECESSITY. Controlling force; irre 
sislible compulsion; a power or impulse se 
great that it admits no choice of conduct. 
When it is said that an act is done “under 
necessity,” if may be, in iaw, either of three 
kinds of necessity: (1) The necessity of pre- 
serving one’s own life, which will excuse a 
homicide; (2) the necessity of obedience, as 
to the laws, or the obedience of one not sué 
Juris to his superior; (3) the necessity caused 
by the act of God or a stranger. See Jacob; 
Mozley & Whitley. 

A constraint upon the will whereby a person is 
urged to do that which his judgmeut disapproves, 
and which, it is to be presumed, his will (if left to 
itself) would reject. A man, therefore, is excused 
for thoss actions which are done through unevoid- 
able force and compulsion. Wharton. 


NECESSITY, HOMICIDE BY. Aspe 
cies of justifiable homicide, because it arises 
from some unavoidable necessity, without 
any will, intention, or desire, and without 
any inadvertence or negligence in the party 
killing, and therefore without any shadow of 
blame. As, for instance, by virtue of such 


e = 


NECK-VERSE 


an office as obliges one, in the execution of 
public justice, to put a malefactor to death 
who has forfeited his life to the laws of his 
country. But thelaw must require it, other- 
wise it is not justifiable. 4 Bl. Comm. 178, 


NECK-VERSE. The Latin sentence, 
“ Misérere mei, Deus,” was so called, because 
the reading of it was made a test for those 
who claimed benefit of clergy. 


NEEDLESS. Ina statute against, “need- 
less” killing or mutilation of any animal, 
this term denotes an act done without any 
useful motive, in a spirit of wanton cruelty, 
or for the mere pleasure of destruction. 37 
Ark. 460; 4 Mo. App. 215. 


NEFAS. Lat. That which is against 
right or the divine law. A wicked or impi- 
ous thing er act. Calvin. 


NEFASTUS. Lat. Inauspicious. Ap- 
plied, in the Roman law, to a day on which it 
was unlawful to open the courts or admin- 
ister justice. 


Negatio conclusionis ost error in 
lege. Wing. 268. The denial of a conclu- 
sion ig error in law. 


Negatio destruit negationem, et am- 
be faciunt affirmationem. A negative 
destroys a negative, and both make an af- 
firmative. Co. Litt. 1466. Lord Coke cites 
this as a rule of grammatical construction, 
not always applying in law. 


Negatio duplex est affirmatio A 


double negative is an affirmative. 


NEGATIVE. A denial; a proposition 
by which something is denied; a statement 
in the form of denial. Two negatives do 
not make a good issue. Steph. Pl. 386, 387, 


NEGATIVE AVERMENT. Ags op- 
pesed to the traverse or simple denial of an 
afirmative allegation, a negative averment 
is an allegation of some substantive fact, e, 
g., that premises are not in repair, which, 
although negative in form, is really affirma- 
tive in substance, and the party alleging the 
fact of non-repair must proveit. Brown, 


NEGATIVE CONDITION. One by 
which if is stipulated that a given thing 
shall not happen. 


NEGATIVE COVENANT. One in 
which the covenanlor binds himself not te 
do or perform a specified act or thing. 


“NEGATIVE EASEMENT. One by 


807 


NEGLIGENCE 


prohibited from doing something otherwise 
lawful upon his estate, because it will affect 
the dominant estate, (as interrupting the 
light and air from the latter by building on 
the former.) 2 Washb. Real Prop. 301; 70 
N.Y. 447. 


NEGATIVE PREGNANT. In plead- 
ing. A negative implying also an aflirma- 
tive. Cowell. Such a form of negative ex- 
pression as may imply or carry within it an 
affirmative. Steph. Pl. 351. As if a man 
be said to have aliened land in fee, and he 
says he has not aliened in fee, this is a neg- 
ative pregnang; for, though it be true that 
he has not aliened In fee, yet it may be that 
he has made an estate in tail. Cowell. 


NEGATIVE STATUTE. A statute ex- 
pressed in negative terms; a statute which 
prohibits a thing from being done, or declares 
what shall noé be done. 


WEGLECT. Omission; failure to do 
something that one is bound to do; careless- 
ness. 

The term is used in the law of bailment 
as synonymous with “negligence,” But the 
latter word is the closer translation of the 
Latin “negtigentia,” 

As used in respect to the payment of 
money, refusal is the failure to pay money 
when demanded; neglect is the failure to pay 
money whieh the party is bound to pay with- 
out demand. 6 Gray, 224. 

The term means to omit, as to neglect, business 
or payment or duty or work, and is generally used 
in this sense. It does uot generally imply care- 
Jessuess or imprudence, but simply an omission to 


do or perform some work, duty, or act. B4N. Y. 
282. 


NEGLIGENCE, The omission to do 
something which a reasonable man, guided 
by those considerations whieh ordinarily reg- 
ulate the conduct of human affairs, would do, 
or doing something which a prudent and rea- 
sonable man would noi do. It must be de- 
termined in all cases by reference to the sit- 
uation and knowledge of the parties and all 
tho attendant circumstances. 15 Wall. 536; 
11 Exch. 784. 

Negligence, in its civil relation, is such an 
inadvertent imperfection, by a responsible 
human agent, in the discharge of a legal du- 
ty, a3 immediately produces, in an ordinary 
and natural sequence, a damage to another, 
Whart, Neg. § 3. 

It is conceded by ali the authorities that the 
standard by which to determine whether a 


which the owner of the servient estate is | person has been guilty of negligence is the 


NEGLIGENCE 


N eonduct of the prudent or careful or diligent 
man. Bigelow, Torts, 261. 

The failure to observe, for the protection of the 
interests of another person, that degree of care, 
precaution, and vigilunce which the circumstances 
justly demand, whereby such other person suffers 
injury. Cooley, Torts, 630. 

The failure to do what'a reasonable and prudent 
person would ordinarily have done under the cir- 
cumstances of the situation, or the doing what 
such @ person under the existing circumstances 
would not havedone. 95 U.S. 441. 

The opposite of care and prudence; the omission 
to use the means reasonably necessary to avoid in- 
jury to others. 39 Ill. 353. 

Negligence or carelessness signifies want of 
care, caution, attention, diligence, or discretion in 
one having no positive intention to injure the per- 
gon complaining thereof, The words “reckless,” 
“indifferent,” “careless, ” and “wanton” are never 
understood to signify positive will or intention, 
unless when joined with other words which show 
that they are to receive an artificial or unusual, if 
notan unnatural, interpretation. 10 Bush, 677. 

Negligence is any culpable omission of @ posi- 
tive duty. It differs from heedlessness, in that 
heedlessness is the doing of an act in violation of 
&@ negative duty, without adverting to its possible 
consequences. In both cases there is inacdvert- 
ence, and there is breach of duty. Aust. Jur. § 630. 


Negligence is commonly classed under 
three degrees,—slight, ordinary, and gross. 
Slight negligence consists in the want of 
great care and diligence; ordinary negli- 
gence, in the want of ordinary care and dili- 
gence; and gross negligence, in the want of 
slight care and diligence. Civil Code Dak. 
§ 2102. See, further, Cank; Gross NEGLI- 
GENCE; SLIGHT NEGLIGENCE. 


Negligence cannot be considered “gross” unless 
evidenced by an entire failure to exercise care, or 
by the exercise of so slight a degree of care as to 
justify the belief that the person on whom care 
was incumbent was indifferent to the interest and 
welfare of others. 64 Tex. 156. 


NEGLIGENT ESCAPE. <An_ escape 
from confinement effected by the prisoner 
without the knowledge or connivance of the 
keeper of the prison, but which was made 
possible or practicable by the latter’s negli- 
gence, or by his omission of such care and 
vigilance as he wag legally bound to exercise 
in the safe-keeping of the prisoner. 


NEGLIGENTIA. Lat. In thecivillaw. 
Carelessness; inattention; the omission of 
proper care or forethought. The terim is not 
exactly equivalent to our “negligence,” in- 
asmuch as it was not any neyligentia, but 
only a high or gross degree of it, that 
amounted to eulpa, (actionable or punisha- 
ble fault.) 


Negligentia semper habet infortunium 
comitem. Negligence always has misfort- 
. 


808 


lg ee SE =a es 
SS SS ee 


NEGOTIABLE WORDS 


une for a companion. 
Touch, 476. 


NEGOCE. Fr. 
agement of affairs. 


Co. Litt. 2468; Shep. 
Business; trade; man- 


NEGOTIABILITY. In mercantile law, 
Transferable quality. That quality of bills 
of exchange and promissory notes which 
renders them transferable from one persoR 
to another, and from possessing which they 
are cmphatically termed “negotiable paper.” 
3 Kent, Comm. 74, 77, 8Y, et seq. See 
Story, Bills, § 60. 


NEGOTIABLE. The word “negotia- 
tion,” as used by writers upon mercantile 
law, means the act by which a bill of ex- 
change or promissory note is put into cireu- 
lation, by being passed by one of the original 
parties to another person. ‘“Nevotiable” 
means that which is capable of being trans- 
ferred by assignment; a thing which may be 
transferred by a sale and indorsement or de- 
livery. This negotiable quality transfers the 
debt from the party to whom it was original- 
ly owing, to the holder, when tlie instrument 
is properly indorsed, so as to enable the Jat- 
ter to suc, in his own name, cither the mak- 
er of a promissory note or the acceptor of a 
bill of exchange, and the other parties to such 
instruments, such as the drawer of a bill, or 
the indorser of a bill or note, unless the 
holder has been guilty of laches in giving the 
required notice. It must, however, be pay. 
able to order or bearer, and, at all events, in 
money only, and not out of any particular 
fund. 60 Ind, 250. 


NEGOTIABLE INSTRUMENTS. A 
general name for bills, notes, checks, trans- 
ferable bonds or coupons, lettera of credit, 
and other negotiable written securities. 

Any written securities which may be trans- 
ferred by indorsement and delivery or by de- 
livery merely, 80 a3 to vest in the indorsea 
the legal title, and thus enable him to sue 
thereon in his own hame. Or, more technic- 
ally, those instruments which not only carry 
the lecal title with them by indorsement or 
delivery, but carry as well, when transferred 
before maturity, the right of the transferve 
to demand the full amounts which their faces 
callfor. Daniel, Neg. inst. § la. 

A negotiable instrument ig a written prom- 
ise or request for the payment of a certain 


sum of money toorder or bearer. Civil Code 
Cal. § 3087. 
NEGOTIABLE WORDS. Words and 


phrases which impart the character of nego- 


an ag 


NEGOTIATE 


tiahility to bills, notes, checks, etc., in which | 
they are inserted; for instance, a direction 
to pay to A, “or order” or “bearer.” 


NEGOTIATE. To discuss or arrange a 
sale or bargain; to arrange the preliminaries 
of a business transaction. Also to sell or 
discount negotiable paper, or assign or trans- 
fer it by indorsement and delivery. 


NEGOTIATION. The deliberation, dis- 
cussion, or conference upon the terms of a 
proposed agreement; the act of settling or 
arranging the terms and conditions of a bar- 
gain, sale, or other business transaction, 
Also the transfer of, or act of putting into 
circulation, a negctiable instrument. 


NEGOTIORUM GESTIO. Lat. In 
thecivillaw. Literally, a doing of business 
or businesses. A species of spontaneous 
agency, or an interference by one in the af- 
fairs of another, in his absence, from be- 
nevolence or friendship, and without author- 
ity. 2 Kent, Comm. 616, note; Inst, 3, 28, 1. 


NEGOTIORUM GESTOR. Lat. In the 
civiilaw A transacter or manager of busi- 
ness; & person voluntarily constituting him- 
self agent for another; one who, without any 
mandate or authority, assumes to take charge 
of an affair or concern for another person, in 
the latter’s absence, but for his interest. 

One who spontaneously, and without the 
knowledge or consent of the owner, inter- 
meddles with his property, as to do work on 
it, or to carry it to another place, ete. Story, 
Bailza, § 189. 


NEGRG. The word “negro” means a 
black man, one descended from the African 
racs, ard does not commonly inecludea mulat- 
tc. 18 Ala. 720. 


NEI¥. In old English law, A woman 
who was born a villein, or a bondwoman. 


NEIGHBORHOOD. A place near; an 
adjoining or surrounding district; a more im- 
Mediate vicinity; vicinage. See 63 N. H. 
247; 3N. Y. 502; 88 Iowa, 484. 


NEMBDA. In Swedish and Gothic iaw. 
Ajury 3 Bl, Comm. 349, 359. 


NEMINE CONTRADICENTE. Lat. 
No one dissenting; no one voting in the nega- 
tive. A phrase used to indicate the unanimous 
consent of a court or legislative body toa 
judgment, resolution, vote, or motion. Com- 


monly abbreviated “nem. con.” 


809 


NEMO DE DOMO, ETC. 


Neminem oportet esse sapienticrem 
legibus. Co. Litt. 975. No man ought to 
be wiser fhan the laws. 


NEMO. Lat. No one; no man. The 
initial word of many Latin phrases and 
maxims, among which are the following: 


Nemo admittendus est inhabilitare 
seipsum. Jenk. Cent. 40. No manisto be 
admitted to incapacitate himself. 


Nemo agit in seipsum. No man acts 
against himself. Jenk. Cent. p. 40, case 76. 
A man cannot be a judge and a party in his 
own cause. Id.; Broom, Max. 2]16n. 


Wemo aliens rei, sine satisdatione, de- 
fensor idoneus intelligitur. No man is 
considered a competent defender of another's 
property, without security. A rule of the 
Roman law, applied in part in admiralty 
cases. 1 Curt. 202. 


Nemo alieno nomine lege agere potest. 
No one can sue in the name of another. Dig. 
50, 17, 1238. 


Nomo allegans suam turpitudinem est 
audiendus. No one alleging his own base- 
ness is to be heard. The courts of law have 
properly rejected this asa rule of evidence. 
7? Term R. 601. 


Nemo bis punitur pro eodem delicto. 
No man is punished twice for the same of- 
fense. 4 Bl. Comm. 315; 2 Hawk. P. C. 377. 


Nemo cogitationis ponam patitur. 
No one suffers punishment on account of his 
thoughts. Tray. Lat. Max. 362. 


Nemo cogitur rem suam vendere, 
etiam justo pretio. No man is compelled to 
sell his own property, even for a just price. 
4 Inst. 276. 


Nemo contra factum suum venire po- 
test. No man can contravene or contradict 
his own deed. 2 Inst. 66. The principle of 
estoppel by deed. Best, Ev. p. 408, § 870. 


Wemo dare potest quod non habet. 
No man can give that which he has not. 
Fleta, lib. 3, c. 15, § 8. 


Nemo dat qui non habet. He who 
hath not cannot give. Jenk, Cent. 250; 
Broom, Max. 499%; 6 C. B. (N. §.) 478. 


Wemo de domo sua extrahi potest. 
No one can be dragged out of hisown house. 
In other words, every man’s house is his cas- 
tle. Dig. 50, 17, 103. 


N 


NEMO DEBET, ETC. 


Nemo debet bis puniri pro uno de- 
licto. No man ought to be punished twice 
for one offense. 4 Coke, 43a; 11 Coke, 59d. 
No man-shall be placed in peril of legal pen- 
alties more than once upon the same accusa- 
tion. Broom, Max. 548. 


Nemo debet bis vexari [si constet 
curiz quod sit] pro una et eadem causa. 
No man ought to be twice troubled or har- 
assed [if it appear tu the court that it is] for 
oue und the same cause, 5 Coke, bla. No 
iin can be sued a second time for the same 
cause of action, if onee judgment has been 
rendered. See Broom, Max. 327, 348. No 
mun can be held to bail a second time at the 
suit of the same plaintiff for the same cause 
of action. 1 Chit. Archb. Pr. 476. 


Nemo debet esse judex in propria 
causa. No man ought to be a judge in his 
own cause. 12 Coke, ll4a. <A maxiin de- 
rived from the civillaw. Cod. 3, 5. Called 
a “fundamental rule of reason and of nat- 
ural justice.” Burrows, Sett. Cas. 194, 197. 


Nemo debet immiscere se rei ad se 
nihil pertinenti. No one should intermed- 
dle with a thing that in no respect concerns 
him. Jenk. Cent. p. 18, ease 82. 


Wemo debet in communione invitus 
teneri. No one should be retained in a part- 
nership against his will. 2 Sandf. 568, 593; 
1 Johns. 106, 114. 


Nemo debet locupletari aliena jactura. 
Noone ought to be enriched by another’s 
loss. Dig. 6, 1, 48, 65; 2 Kent, Comm. 336; 
1 Kames, Eq. 331. 


Nemo debet locupletari ex alterius 
incommodo. No one ought to be made 
rich out of another’s loss. Jenk. Cent. 4; 
10 Barb, 626, 633. 


Nemo debet rem suam sine facto aut 
defectu suo amittere. No man ought to 
lose his property without his own act or de- 
fault. Co, Litt. 2638c. 


Nemo duobus utatur officiis. 4 Inst. 
100. No one should hold two offices, i. e., 
at the same time. 


Nemo ejusdem tenementi simul potest 
esse heeres et dominus. No one can at 
the same time be the heir and the owner of 
the same tenement. See 1 Reeve, Eng. Law, 
106. 


Wemo enim aliquam partem recte in- 
telligere possit antequam totum iterum 
atque iterum perlegerit. No one is able 


810 


NEMO NASCITUR ARTIFEX 


rightly to understand one part before he has 
again and again read through the whole. 
Broom, Max. 593. 


Nemo est heres viventis. No one is 
the heir ofaliving person. Co. Litt. 8a, 226. 
No one can be heir during the life of his an- 
eestor. Broom, Max. 522, 523. No person 
can be the actual complete heir of another till 
the ancestor is previously dead. 2 Bl. Comm. 
208. 


Wemo est supra leges. 
the law. Lofft, 142. 


No oneis above 


Wemo ex alterius facto pregravari 
debet. No man ought to be burdened in 
consequence of another's act. 2 Kent, Comm. 
646. 

NWemo ex consilio obligatur. Noman 
is bound in consequence of his advice. Mere 
advice will not create the obligation of 3 
mandate. Story, Bailm. § 155. 


Nemo ex dolo suo proprio relevetur, 
aut auxilium capiat. Let no one be re- 
lieved or gain an advantage by his own fraud. 
A civil law maxim. 


Nemo ex proprio dolo consequitur 
actionem. Noone maintains an action aris- 
ing ont of his own wrong. Broom, Max. 
297, 


Nemo ex suo delicto meliorem suam 
conditionem facere potest. No one can 
make his condition better by his own mis- 
deed. Dig. 50, 17, 134, 1. 


Wemo in propria causa testis esse 
debet. No one ought to be a witness in his 
own cause. $3 BI. Comm. 371. 


Nemo inauditus condemnari debet si 
non sit contumax. No man ought to be 
condemned without being heard unless he ba 
contumacious. Jenk. Cent. p. 18, case 12, 
in marg. 


Nemo jus sibi dicere potest. No one 
can declare the law for himself, No one is 
entitled to take the law into his own hands. 
Tray. Lat. Max. 366. 


Nemo militans Deo implicetur sac- 
ularibus negotiis. Noman whois warring 
for [in the service of] God should be involved 
in secular matters. Co. Litt. 706. A prin- 
ciple of the old law that men of religion were 
not bound toe go in person with the king to 
War. 


Nemo nascitur artifex. 
No one is born an artificer. 


Co. Litt. 97. 


NEMO PATRIAM, ETC. 


Nemo patriam in qua natus est exuere, 
nee ligeantis debitum ejurare possit. 
No man can renounce the country in which 
he was born, nor abjure the obligation of his 
allegiance. Co. Litt. 129a; Broom, Max. 75; 
Foat. Cr. Law, 184. 


Nemo plus commodi heredi suo relin- 
quit quam ipse habuit. No one leaves a 
greater benefit to his heir than he had bim- 
self. Dig. 50, 17, 120. 


Nemo plus juris ad alium transferre 
potest quam ipse habet. No one can 
transfer more right to another than he has 
himself. Dig. 50, 17, 54; Broom, Max. 467, 
469, 


Wemo potest contra recordum verifi- 
care per patriam. No one can verify by 
the country against a record. 2 Inst. 380. 
The issue upon matter of record cannot be to 
the jury. A maxim of old practice. 


Nemo potest esse dominus et heres. 
No man can be both owner and heir. Tale, 
Com. Law, e. 7. 


Nemo potest esse simul actor et ju- 
dex, No one can beat once suitor and judge. 
Broom, Max. 117. 


Nemo potest esse tenens et dominus. 
No man can be both tenant and lord [of the 
same tenement.} Gilb. Ten, 142. 


Nemo potest facere per alium quod 
per se non potest. No one can do that by 
another which he cannot do of himself, Jenk. 
Cent. p. 237, case 14. A rule said to holdin 
original grants, but not in descents; as where 
an office descended to a woman, in which 
case, though she could not exercise tle office 
in person, she might by deputy. Id. 


Nemo potest facere per obliquum quod 
non potest facere per directum. Noman 
ean do that indirectly which he cannot do 
directly. 1 Eden, 512, 


Nemo potest mutare consilium suum 
in alterius injuriam. No man can change 
his purpose to another’sinjury. Dig. 50, 17, 
75; Broom, Max, 34, 


Nemo potest plus juris ad alium 
transferre quam ipse habet, Co. Litt. 
809; Wing. Max. 56. No one can transfer a 
greater right to another than he himself has. 


Wemo potest sibi debere. 
owe to himself. 


Nemo presens nisi intelligat. One ia 


not present unless he understands. | 


811 


No one can |; 


NEMO TENETUR, ETC. 


Nemo presumitur alienam posterita- 
tem sure preetulisse. Noman is presumed 
to have preferred another's posterity te his 
own. Wing. Max. p. 285, max. 79, 


Nemo presumitur donare. 
presumed to give. 9 Pick. 123, 


No one is 


Nemo presumitur esse immemor 
suse mterns salutis, et maxime in ar- 
ticulo mortis. 6 Coke, 76. No one is pre- 
sumed to be forgetful of his own eternal wel- 
fare, and particularily at the point of death. 


Nemo presumitur lIudere in extre- 
mis, Nooneis presumed to trifle at the point 
of death. 


Nemo preesumitur malus. No one is 
presumed to be bad. 


Nemo prohibetur plures negotiationes. 
sive artes exercere. No one is prohibited 
from following several kinds of business or 
several arts. 11 Coke, 54a. The common 
law doth not prohibit any person from using 
several arts or mysteries at his pleasure. Id. 


Wemo prohibetur pluribus defension- 
ibus uti. Co. Litt. 304¢. No one is pro- 
hibited from making use of several defenses. 


Nemo prudens punit ut preterita 
revocentur, sed ut futura prevenian- 
tur. No wise man punishes in order that 
past things may be recalled, but that future 
wrongs may be prevented. 2 Bulst. 173. 


Nemo punitur pro aliono delicto. 
Wing. Max. 336. No one is punished for 
another’s wrong. 


Nemo punitur sine injuria, facto, seu 
defalta. No one is punished unless for 
some wrong, act, or default, 2 Inst. 287. 


Nemo qui condemnare potest, ab- 
solvere non potest. No one who may con- 
demn is unable to acquit. Dig. 50, 17, 37. 


Nemo sibi esse judex vel suis jus 
ditere debet. No one ouglit to be his own 
judge, or the tribunal in his own affairs. 
Broom, Max. 116,121. See L. R. 1 C. P. 
722, 747. 


Nemo sine actione experitur, et hoc 
non sine breve sive libello conventionali, 
No one goes to law without an action, and 
no one can bring an action without a writ 
or bill. Bract. fol. 112. 


Nemo tenetur ad impossibile. Na 
one is bound to an impossibility. Jenk. 
Cent. 7; Broom, Max. 244. 


NEMO TENETUR ARMARE, ETC. 


Nemo tenetur armare adversarium 
contra se. Wing. Max. 665. No one is 
bound to arm his adversary against himself. 


Nemo tenetur divinare. No man {s 
bound to divine, or to have foreknowledge of, 
a future event. 10 Coke, 55a. 


Nemo tenetur edere instrumenta con- 
tra se. Nomanis bound to produce writings 
against himself. <A rule of the Roman law, 
adhered to in criminal prosecutions, but de- 
parted from in civil questions. Bell. 


Nemo tenetur informare qui nescit, sed 
quisquis scire quod informat. Branch, 
Princ. No one is bound to give information 
about things he is ignorant of, but every one 
is bound to know that which he gives in- 
formation about. 


Nemo tonetur jurare in suam turpi- 
tudinem. No one is bound te swear fo the 
fact of his own criminality; no one can be 
forced to give his awn oath in evidence of his 


guilt. Bell; Halk. 100. 
Nemo tenetur prodere seipsum. No 
one is bound to betray himself. In other 


words, no one can be compelled to criminate 
himself. Broom, Max. 963. 


Wemo tenetur scipsum accusare. 
Wing. Max. 486. No one is bound to accuse 
himself. 


Wemo tenetur seipsum infortuniis et 
periculis exponere. No one is bound to 
expose himself to misfortunes and dangers. 
Co. Litt. 2536. 


Nemo unquam judicet in se. 
can ever be a judge in his own cause. 


No one 


Nemo unquam vir magnus fuit, sine 
aliquo divino afflatu. No one was ever a 
great man without some divine inspiration. 
Cicero. 


Nemo videtur frandare eos qui sciunt 
et consentiunt. No one seems [is supposed | 
to defraud those who know and assent [to 
his acts.] Dig. 50, 17, 145. 

NEMY. L.Fr. Not. Litt. § 3. 

NEPHEW. Thesonofi brother or sister, 
Nephew and uncle are related in the third 


degree according to the civil law, but by the 
canon law, in the second degree. 


NEPOS. Lat. A grandson. 

NEPTIS. Lat. A granddaughter. 

NWEPUOY. In Scotchlaw. A grandson, 
Skene, 


812 


NEW AND USEFUL INVENTION 


NET BALANCE. The proceeds of sale, 
after deducting expenses. 71 Pa. St. 69. 


NET PRICE. The lowest price, after 
deducting all discounts. 


NET PROFITS. This term does not 
mean what is made over the losses, expenses, 
and interest on the amount invested. It in- 
cludes the gain that acerues on the invest- 
ment, after deducting simply the losses and 
9axpenses of the business. 50 Ga. 350. 


WET WEHIGHT. The weight of an ar- 
tic's or collection of articles, after deducting 
from the gross weight the weight of the 
boxes, coverings, casks, etc., containing the 
same. The weight of an animal dressed for 
sale, after rejecting hide, offal, ete. 


NETHER HOUSE OF PARLIA- 
MENT. A name given to the English 
house of commons in the time of Henry 
Vill. 


NEUTRAL. In international law. In- 
different; impartial; not engaged on either 
side; not taking an active part with either 
of the contending states. In an_ interna- 
tional war, the principal hostile powers are 
called “belligerents;” those actively co-oper- 
ating with and assisting them, their “allies;” 
and those taking no part whatever, “neu- 
trals.” 


NEUTRAL PROPERTY. Property 
which belongs to eitizens of neutral powers, 
and is used, treated, and accompanied hy 
proper insignia as such, 


NEUTRALITY. The state of a nation 
which takes no part between two or more 
other nations at war. 


NEVER INDESTED, PLEA OF, A 
species of traverse which occurs in actions of 
debt on simple contract, and is resorted to 
when the defendant means to deny in point 
of fact the existence of any express contract 
to the effect alleged in the declaration, or to 
deny the matters of fact from which such 
contract would by law be implied. Steph. 
Pl. 153, 156; Wharton. 


NEW AND USEFUL INVENTION. 
This phrase is used in the United States 
patent laws to designate the kind of inven. 
tion which is patentable. The word “use- 
ful” does not import that the invention 
should invariably be superior to the modes 
previously in use for the same purpose, but 
means that it must have real utility, in con- 
tradistinction to frivolous or mischievous in- 
ventions. 1 Mason, 182. 


NEW ASSIGNMENT 


NEW ASSIGNMENT. Under the com- 
mon law practice, where the declaration in 
an action is ambiguous, and the defendant 
pleads facts which are literally an answer to 
{t, but not to the real claim set up by the 
plaintiff, the plaintiff's course is to reply by 
way of new assignment; @. ¢., allege tnat he 
brought his action not for the cause supposed 
by the defendant, but for some other cause 
to which the plea has no application. 3 
Steph. Comm. 507; Sweet. 


NEW FOR OLD. In making an ad- 
jnstment of a partial loss under a policy of 
marine insurance, the rule is to apply the old 
materials towards the payment of the new, 
by deducting the value of them from the 
gross 2mount of the expenses for repairs, and 
to allow the deduction of one-third new for 
ald upon the balance. 3 Kent, Comm, 339. 


NEW INN. Aon ton of chancery. Ses 
Inns of CHANCERY. 
NEW MATTER. Inpleading. Mat- 


ter of fact not previously alleged by either 
party in the pleadings. 


NEW PROMISE. An undertaking or 
promise, bared tpon and having relation to 
a former promise which, for some reason, can 
no !enger be enforced, whereby the promisor 
recognizes and revives such furmer promise 
and engages lo fulfill it, 


NEW STYLE. The modern system of 


computing time was introduced into Great | 


Britain A, ). 1752, the 8d of September of 
that year being reckoned as the 14th. 


WHW TRIAL. <A new trial is a re-ax- 
mination of an issue of fact in the same court 
after a trial and decision by a jury or court or 
by referees. Code Civil Proc. Cal. § 656. 

A new trialis a re-examination of the is- 
sue in the same court, before another jury, 
after a verdici has beeu given. Pen. Code 
Cal. § 1179. 

A new trial is a re-examination in the same 
court of an issue of fact, or some purt or 
portions thereof, aiter the verdict by a jury, 
report of a referee, or a decision by the court. 
Bev. Code Iowa 1880, § 2837. 


NEW TRIAL PAPER. In English 
practice. A paper containing a list of causes 
in which rules mist have been obtained for a 
new trial, or for entering a verdict in place 
of a nonsuit, or for entering judgment non 
obstante veredicto, or for otherwise yarying 
or setting aside proceedings which have taken 
place at nist prius. These are called on for 


813 


NEXT OF KIN 


argument in the order in which they stand 
in the paper, on days appointed by the judges 
for the purpose. Brown. 


WHEW WORKS. Intheecivillaw. Bya 
hew work is understood every sort of edifice 
er other work which is newly commenced on 
any ground whatever. When the ancient 
form of work is changed, either by an addi- 
tion being made to it or by some part of the 
ancient work being taken away, it is styled 
also a “new work.” Civil Code La, art. 850, 


NEW YEAR’S DAY. The first day of 
January, The 25th of March was the civil 
and legal New Year’s Day, till the alteration 
of the style in 1752, when it was perma- 
nently fixed at the lst of January. In Scot- 
land the year was, by a provlamation, which 
bears date 27th of November, 1599, ordered 
thenceforth to commence in that kingdom on 
the lst of January instead of the 25th of 
Mareh. Ene. Lond, 


NEWGATE. The name of a prison in 
London, said to have existed as early aa 1207. 
Tt waa three times destroyed and rebuilt. For 
centuries the condition of the placa was hor- 
rible, but it has been greatly improved since 
1808. Since 1815, debtors have not been 
committed to this prison. 


NBEWLY-DISCOVERED EVIDENCE. 


| Evidence of a new and material fact, or new 


evidence in relation toa fact in issue, Gis- 
eovered by a party to « cause after the rendi- 
tion of a verdict or judgment therein. 


NEWSPAPER. According to the usage 

f the commercial world, a newspaper is de- 

fined to be a publication in numbers, con- 

sisting commonly of single sheets, and pub- 

lished at short and stated intervals, conveying 

intelligence of passing events, 4 Op, Attys, 
Gen. 10. 


WEHXI. Lat. In Roman Jaw. Bound; 
bound persens. A term applied to such in- 
solvent debtors as were delivered up to their 
ereditors, by whom they might be held in 
bondage until their debts wore discharged. 
Calyin.; Adams, Hom. Ant, 49, 


NEXT FRIEND. A person, usually a 
relative, not appointed by the court, in 
whose name suit is brought by an infant, 
married woman, or other person not aut 


| juris. 


NEXT OF KIN. In the law of de 
scent and distribution, This term properly 
denotes the persons nearest of kindred to 


| the decedent, that is, those who are most 


NEXT OF KIN 


N nearly related to him by blood; but it is | 
sometimes construed to mean only those who | 
are entitled to take under the statute of dis- 
tributions, and sometimes to include other 
persons, 2 Story, Eq. Jur. § 10650. 


The words “next of kin,” used simpliciter in a 
deed or will, mean, not nearest of kindred, but 
those relatives who Share in the estate according 
to the statute of distributions, including those 
claiming per stirpes or by representation. 23 
How. Pr. 417; 43 Barb. 147. 


NEXT PRESENTATION, In the law 
of adyowsons. The right of next presenta- 
tion is the right to present to the first va- 
cancy of a benefice. 


NEXUM. Lat. In Roman law. Inancient 
times the newum seems to have been a spe- 
cies of formal contract, involving a Joan of 
money, and attended with peculiar conse- 
quences, Solemnized with the “copper and 
balanee.” Later, it appears to have been |! 
used a8 a general term for any contract 
struck with those ceremonies, and hence to 
have inclnded the special form of conveyance 
called “manecipatio.” Ina general sense it 
means the obligation or bond between con- 
tracting parties. See Maine, Anc. Law, 305, 
etseq.; Tad]. Rom. Law, 247. 


In Roman law, this word expressed the tie or 
obligation involved in the old conveyance by 
moancipatia; and came latterly to be used inter- 
changeably with (but less frequently than) the 
word “obligatio” itself. Brown. 


NICHILLS. In English practice. Debts 
due to the exchequer which the sherilf could 
not levy, and as to which he returned vil. 
These sums were transcribed once a year by 
the clerk of the nichills, and sent to the 
treasurer’s remembrancer’s oifice, whence | 
process wis issued to recover the “nichill” 
debts. Both of these offices were abolished 
in 1833. Mozley & Whitley. 


NICKNAME. Ashort name; one nicked 
or cut off for the sake of brevity, without 
conveying any idea of opprobrium, and fre- 
quently evineing the strongest affection or 
the most perfect familiarity. Busb, Eq. 74. 


NIDERLING, NIDERING, or NITH- 
ING. <A vile, base person, or sluggard; 
chicken-hearted. Spelman. 


NIECH. The danghter of one’s brother 
or sister, Ambl. 514. 
NIEFH. Inold English law. A woman 


born in vassalage; a bondwoman. 


NIENT. L. Fr. Nothing; not. 


ee 


814 


NIHIL CAPIAT PER BREVE 


NIENT COMPRISE. Not comprised; 
not included. An exception taken to a peti- 
tion because the thing desired is not con- 
tained in that deed or proceeding whereon the 
petition is founded. ‘Tomlins. 


NIENT CULPABLE, Not guilty. Tha 
name in law French of the general issue in 
tort or in a criminal action. 


NIENT DEDIRE. To say nothing; to 
deny nothing; to suffer judgment by de- 
fault. 


NIENT LE FAIT. In pleading. Notthe 
deed; not his deed. The same as the plea of 
non est factum. 


NIENT SEISI. In old pleading. Not 
seised. The general plea in the writ of an- 
nuity. Crabb, Eng. Law, 424, 


NIGER LIBER. The black book er reg- 
ister in the exchequer; chartularies of ab- 
beys, cathedrals, ete. 


NIGHT. As to what, by the common 
law, is reckoned night and what day, it seems 
to be the general opinion that, if there be 
daylight, or crepuseulum, enough begun or 
left to discern a man’s face, that is con- 
sidered day; and night is when it is so dark 
that the countenance of a man cannot be dis- 
cerned. 1 Hale, P. GC. 350. However, the 
limit of 9 P. st. to 6 A. M. has been fixed by 
statute, in England, as the period of night, 
in prosecutions for burglary and larceny. 
St. 24 & 25 Vict. c. 96, § 1; Brown. 


NIGHT MAGISTRATE. A constable 
of the night; the head of a watch-house. 


NIGHT WALKERS. Described in the 
atatute 5 Edw. III. ec. 14, as persons who 
sleep by day and walk by night. Persons 


who prow] about at night, and are of a sus- 
picious appearance and behavior. 


Nigrum nunqguam excedere debet ru- 
brum. The black should never go beyond the 
red, [é. e. the text of a statute should never 
be read in a sense more comprehensive than 
the rubric, or title.] Tray. Lat. Max. 373. 


WIHIL. Nothing. Also the nameof a 
return made by a sheriff, ete., when the cir- 
cumstances warrant it. 


Wihil aliud potest rex quam quod da 
jure potest. 11 Coke, 74. The King can 
do nothing except what he can by law do. 


NIHIL CAPIAT PHR BREVE. In 
practice. That he take nothing by his writ. 
The form of judgment against the plaintiff 


NIRIL CONSENSUL, ETC. 


fn an action, either in bar or in abatement. 
When the plaintiff has commenced his pro- 
coedings by bill, the judgmant is nihil capiat 
per biliam. Co, Litt. 368. 


Nihil consensui tam contrarium est 
quam vis atque metus. Nothing is so op- 
posed to consent as force and fear. Dig. 50, 
17, 116. 


Nibil de re scerescit ei qui nihil in 
re quando jus accresceret haboet. Co. 
Litt. 188. Nothing of a matter acerues to 
him who, when the right acerues, has nothing 
in that matter. 


NIHIL DICIT. Hesaysnothing. This 
ig the name of the judgment which may be 
taken as of course against a defendant who 
omits to plead or answer the plaintiff’s dec- 
laration or complaint within the time limited. 


S15 


In some jurisdictions it is otherwise known | 


as judgment “for want of a plea.” 


Wihil dictum quod non dictum prius. 
Nothing is said which was not said before. 
Said of a case where former arguments were 
repeated. Hardr. 464. 


NIHIL EST. Lat. There is nothing. 
A. form of return mada by a sheriff when he 
has been unable to serve the writ. “Although 
non est inventus is the more frequent return 
in such a case, yet it is by no means as full 
an answer to the command of the writ as is 
“the return of nihidZ. That amounts to an 
averment that the defendant has nothing in 
the biiliwick, no dwelling-house, no family, 
no residelice, and no personal presence to en- 
able the otlicer to make the service required 
by the act of assembly. Itis therefore afull 
noswer to the exigency of the writ.” 35 Pa. 
St. 139, 


Nihil est onim liberale quod non idem 
justum. For thereis nothing generous which 
is notat the sametime just. 2 Kent, Comm. 
441, note a. 


Nihil est magis rationi consentaneum 
guam eodem modo quodque dissolvera 
quo confiatum est. Nothing is more con- 
sonant to reason than that a thing should be 
dissolved or discharged in the same way in 
which it was created. Shep. Touch. 323. 


Nihil facit error nominis eum de cor- 
pore constat. 11 Coke, 21. An error as 
to a name is nothimg when there is certainty 
as to the person. 


NIHIL HABET. Hehasnothing. The 
name of a return made by a sheriff to a scire 


NIHIL QUOD, ETC. 


factas or other writ which he has been um 
able to serve on the defendant. 


Wihil habet forum 6x scena. The court 
has nothing to do with what is uot before it. 
Bac. Max. 


Nihil in lege intolerabilius est [quam] 
bandem rem diverso jure censeri. Noth- 
Ing is more intolerable in law than that tha 
same matter, thing, or case should be sub- 
ject to different views of law. 4 Coke, 93a, 
Applied to the difference of opinion enter- 
tained by different courts, as to the law of a 
particular case. Id. 


Nihil infra regnum subditos magis 
conservat in tranquilitate et concordia 
quam debitalegum administratio. Noth- 
ing preserves in tranquility and concord 
those who are subjected to the same govern- 
ment better than a due administration of the 
laws. 2 Inst. 158. 


Wihil iniquius quam ssquitatem nimis 
intendere. Nothing is more unjust than to 
extend equity too far. Halk. 108. 


Nihil magis justum est quam quod 
necessarium est. Nothing is more just 
than that which is necessary. Day. Ir. K, 
B. 12; Branch, Prine. 


Nihil nequam ost prasumendum 
Nothing wicked is to be presumed. 2 P. 
Wras. 583. 


Nihil perfectum est dum aliquid re- 
stat agendum. Nothing ts perfect while 
anything remains to be dona, 9 Coke, 9d. 


Nihil peti potest ante id tempus quo 
per rerum naturam persolvi possit, 
Nothing can be demanded hefore the time 
when, by tue nature of things, it can be paid. 
Dig. 50, 17, 186. 


Nihil possumus contra veritatem. We 
ean do nothing against truth. Doct. & 
Stud. diai. 2, c. 6, 


Nihil preseribitur nisi quod possi- 
detur. There is no prescription for that 
which is not possessed. 5 Barn. & Ald. 277. 


Nihil quod est contra rationem est 
licitum. Nothing that is against reason ir 
lawful. Co. Litt. 976. 


Wihil quod est inconveniens est lici- 
tum. Noihing that is inconvenient is law 
ful. Co. Litt. G6¢, 97%. A maxim very 
frequently quoted by Lord Coke, but to be 
taken in modern law with some qualification. 
Broom, Max. 186, 360. 


NIHiL SIMUL INVENTUM, ETC. 


Nihil simul inventum est et perfect- 
am. Co. Litt. 230. Nothing is invented 
and perfected at the same moment. 


Nihil tam conveniens est naturali 
fequitati quam unumquodque dissolvi 
eo ligamine quo ligatum est. Nothing 
is so consonant to natural equity as that a 
thing should be dissolved by the same means 
by which it was bound. 2Inst. 059; Broom, 
Max. 877. 


Nihil tam eonveniens est naturali 
eequitati quam voluntatem domini rem 
suam in alium transferre ratam habere. 
1 Coke, 100. 
natural equity as to regard the intention of 
the owner in transferring his own property 
to another. 


Nihil tam naturale est, quam eo ge- 
nere quidque dissolvere, quo colligatum 
est; ideo verborum obligatio verbis 
tollitur; nudi consensus obligatio con- 
"trario consensu dissolvitur. Nothing is 


80 natural as to dissolve anything in the way | 


in which it was bound together; therefore 
the obligation of words is taken away by 
words; the obligation of mere consent is dis- 
solved by the contrary consent. Dig. 50, 17, 
35; Broom, Max. 887. 


Wihil tam proprium imperio quam 
lezibus vivere. Nothing is so becoming to 
authority as to live in accordance with the 
laws. Fleta, lib. 1, ¢. 17, § 11. 


NIHILIST. A member of a secret as- 
sociation, (especially in Russia,) which is de- 
voted to the destruction of the present polit- 
jeal, religious, and social institutions. Web- 
ster. 


Wil agit exemplum litem quod lite 


resolvit. An example does no good which 
settles one question by another. 15 Wend. 
44, 49. 


Wil consensui tam contrarium est 
quam vis atque metus, Nothing is so op- 
posed to consent as furce and fear. Dig. 50, 
Lis L1G. 


NIL DEBET, He owes nothing. The 
form of the general issue in all actions of 
debt on simple contract. 


Nil facit error nominis cum de cor- 
pore vel persona constat. A mistake in 
the name does not matter when the body or 
person is manifest. 11 Coke, 21; Broom, 
Max. 634. 


Nothing is so consonant to 


816 


NISI PRIUS 


NIL HABUIT IN TENEMENTIS. 
He had nothing [no interest] in the tene. 
ments, <A plea in debt ona lease indented, 
by which the defendant sets up that the per- 
son claiming to be landlord had no title or 
interest. 


NIL LIGATUM. Nothing bound; that 
is,no obligation has been incurred. ‘Tray. 
Lat. Max. 


Nil sine prudenti fecit ratione vetus- 
tas. Antiquity did nothing without a good 
Treason. Co. Litt. 65. 


Nil temere novandum. Nothing should 
be rashly changed. Jenk., Cent. 16d. 


Nimia certitudo certitudinem ipsam 
destruit. Too great certainty destroys cer- 
tainty itself. Lofft, 244. 


Nimia subtilitas in jure reprobatur. 
Wing. Max. 26. Too much subtlety in law 
is discountenanced. 


Nimium altercando veritas amittitur. 
Hob. 344, By too much altercation truth ig. 
lost. 


NIMMER. 
WISI. Lat. 


A thief; a pilferer. 


Unless. The word is often 


allixed, as a kind of elliptical expression, to: 


the words “rule,” “order,” “decree,” “judg- 
ment,” or “confirmation,” to indicate that 
the adjudication spoken of is one which is to 
stand ag valid aud operative unless the party 
affected by it shall appear and show cause 


against it, or tuke some other appropriate 


step toavoid itor procure its revocation, 
Thus a “decree nis¢” ig one which will deli- 
nitely eonclude the defendant’s rights un- 


less, within the prescribed time, he shows. 


cause to set it aside or successfully appeals. 
The word, in this sense, is opposed to “ab- 
solute.” And whena rule nis? is finally con- 
firmed, for the defendant's failure to show 
cause against it, it is said to be “made absu- 
lute.” 


NISI FECERIS. Lat. The name ofa 


| clause commonly oceurring in the old tranori- 


al writs, commanding that, if the lords failed 
to do justice, the king’s court or officer should 
do it. By virtue of this elause, the king's 
court usurped the jurisdiction of the private, 
manorial, or local courts. Stim. Law Gloss, 


WISI PRIUS. Lat. Thevzisi prius courts 
are such as are held for the trial of issues of 
fact before a jury and one presiding judge. 
In America the phrase is familiarly used tu. 
denote the forum (whatever may be its stat 


NISI PRIUS CLAUSE 


a jury, as distinguished from the appellate 
court. See 3 Bl. Comm. 58. 


‘NISI PRIUS CLAUSE. In practice. 
A clause entered on the record in an action 
at law, authorizing the trial of the cause at 
nisi prius in the particular county desig- 
nated. Jt was first used by way of continu- 
ance. 


NISI PRIUS ROLL. Inpractice. The 
roll or record containing the pleadings, issue, 
and jury process of an action, made up for 
use in the nist préws court. 


NISI PRIUS WRIT. The old name of 
the writ of venive, which originally, in pur- 
suance of the statute of Westminster 2, con- 
tained the 2ist prius clause. Reg. Jud. 28, 
75; Cowell. 


WIVICOLLINI BRITONES. In old 
English law. Welslimen, because they live 
neir high mountains covered with snow. 
Du Cange. 


NO AWARD. The name ofa plea in an 


i action on an award, by which the defendant 
traverses the allegation that an award was 
| made, 


NO BILL. This phrase, when indorsed 
by a grand jury on an indictment, is equiva- 


lent to “not found,” “not a true bill,” or | 


“ignoramus,” 


NO FUNDS. This term denotes a lack 
of assets or money fora specific use. It is 
the return made by a bank to a cheek drawn 
upon it by a person who has no deposit to 
his credit there; also by an executor, trus- 
tee, etc., who has no assets for the specific 
purpose. 


NO GOODS. This is the English equiva- 
lent of the Latin term “zulla bona,” being 
the form of the return made by a sheriff or 
constable, charged with aun execution, when 
he has found no property of the debtor on 
which to levy. 


Wo man can hold the same land im- 
mediately of two several landlords. 
Co. Litt. 152. 


Wo man is presumed to do anything 
against nature. 22 Vin, Abr. 154. 


Io man shall set up his infamy as a 
defense. 2 W. Bl. 364. 


Wo one can grant or convey what 
he does not own. 25 Barb. 284,301. See 
AM. DICT. LAW—52 


817 


NOLENS VOLENS 


utory name) in which the cause was tried to | 20 Wend. 267; 23 N. Y. 252; 18 N. Y. 121; 


6 Duer, 232. 


NOBILE OFFICIUM. In Scotch law. 
An equitable power of the court of session, 
to give relief when none is possible at law. 
Ersk. Inst. 1, 3, 22; Bell. 


Nobiles magis plectuntur pecunia; 
plebes vero in corpore. 8 Inst. 220, 
The higher classes are more punished in 
money; but the lower in person. 


Wobiles sunt, qui arma gentilitia an- 
tecessorum suorum proferre possunt, 
2 Inst. 595. The gentry are those who ure 
able to produce armorial bearings derived by 
descent from their own ancestors. 


Nobiliores ot benigniores preesump- 
tiones in dubiis sunt preeferendse. In 
eases of doubt, the more generous and more 
benign presumptions are to be preferred. A 
civil-law maxim. 


Nobilitas est duplex, superior et in- 
ferior. 2 Inst. 583. ‘There are two sorts of 
nobility, the higher and the lower. 


WOBILITY. In English law. A divis- 
ion of the people, comprehending dukes, mar- 
quises, earls, viscounts, and barons. These 
had anciently duties annexed to their re- 
spective honors. ‘They are created either 
by writ, 2. e., by royal summons to attend 


| the house of peers, or by letters patent, 7. ¢., 


by royal grant of any dignity and degree of 
peerage; and they enjoy many privileges, ex- 
elusive of their senatorial capacity. 1 Bl, 
Comm. 396. 


NOCENT. From Latin 
Guilty. “The szocent person.” 


“nocere,” 
1 Vern. 429. 


NOCTANTER. By night. An abol- 
ished writ which issued ont of chancery, and 
returned to the queen’s bench, for the pros- 
tration of inclosures, ete. 


WOCTEHS and NOCTEM DH FIRMA. 
Entertainment of meat -and drink for so 
tmaany nights. Domesday. 


NOCUMENTUM. Lat. In old English 
law. A nuisance. WNocumentum dinung- 
sum, a nuisance oceasioning less or damage. 
Nocumentum injuriosum, an injurious nui- 
sance. For the latter only a remedy was 
given. Braet. fol. 221. 


WOLENS VOLENS. Lat. Whethes 
willing or unwilling; consenting or not. 


N 


NOLIS 


NOLIS. Fr. 
The same with “fret.” 


In Frenchlaw. Freight. 
Ord. Mar. liv. 3, 


tit. 3. 

NOLISSEMENT. Fr. In French ma- 
rine law, Affreightment. Ord. Mar. liv. 3, 
tit, 1. J 


NOLLE PROSEQUI. Lat. In practice. 
A formal entry upon the record, by the plain- 
tiff in a civil suit or the prosecuting officer 
in a criminal action, by which he declares 
chit he “will no further prosecute” the case, 
either as to some of the counts, or some of 
the defendants, or altogether. 

A nolle proseqiuit is in the nature of an acknowl- 
edgment or undertaking by the plaintiff in an ac- 
tion to forbear to proceed any further either in the 
action altogether, or as to some part of it, or as to 
some of the defendants; and is different from a 
mon pros., by which the plaintiff is put out of 
court with respect to all the defendants. Brown. 


NOLO CONTENDERKE. Lat. 
not contest it. This is the name of a plea in 


818 


I will | 


a criminal action, upon which the defendant | 


may be sentenced. 


WOMEN. In the civil law. A name; 
the name, style, or designation of a person. 
Properly, the name showing to what gens 
or tribe he belonged, as distinguished from 
his own individual name, (the prauomen,) 
from his surname or family name, (cogno- 


men,) and from any name added by way of 


a descriptive title, (agnomen.) 
The name or style of a class or genus of 
persons or objects. 


A debt or a debtor. Ainsworth; Calvin. 


NOMEN COLLECTIVUM. A collect- 
ive name or term; a term expressive of a 
class; a term including several of the same 
kind; a term expressive of the plural, as well 
as singular, number. 


Nomen est quasi rei notamen. A 
name is, as it were, the note of a thing. 11 
Coke, 20. 

NOMEN GENERALE. A _ general 
name; the name of a genus. Fleta, lib. 4, c. 
19, § 1. 

NOMEN GENERALISSIMUM. A 


name of the most general kind; a name or 
term of the most general meaning. By the 
name of “land,” which is nomen generalis- 
simwum, everything terrestrial will pass. 2 
Bl. Comm. 19; 3 Bl. Comm, 172. 


NOMEN JURiS. A name of the law; 
a technical legal term. 


NOMINAL PARTNER 


Women non sufficit, si res non sit de 
jure-aut de facto. A name it not sufficient 
if there be not a thing [or subject for it] de 
jure or de facto. 4 Coke, 1078. 


Nomina mutabilia sunt, res autem im- 
mobiles. Names are mutable, but things” 
are immovable, [immutable.] A name may 
be true or false, or may change, but the thing 
itself always maintains its identity. 6 Coke, 
66. 


Nomina si neseis perit cognitio re- 
rum; et nomina si perdas, certe dis- 
tinctio rerum perditur. Co. Litt. 86, If 
you know not the names of things, the knowl- 
edge of things themselves perishes; and, if 
you lose the names, the distinction of the 
things is certainly lost. 


Nomina sunt note rerum. 11 Coke, 
20. Names are the notes of things. 


Nomina sunt symbola rerum. Godb. 
Names are the symbols of things. 


NOMINA TRANSCRIPTITIA. In 
Roman law. Obligations contracted by dite. 
re (t ¢., literis obligutiones) were so called 
because they arose from a peculiar transfer 
(transeriptio) from the creditor’s day-book 
(adversaria) into his ledger, (codex.) 


NOMINA VILLARUM. In English 
law. An account of the names of all the 
villages and the possessors thereof, in each 
county, drawn up by several sherifis, (9 Edw, 
Il.,) and returned by them into the excheg- 
uer, where it is still preserved. Wharton. 


NOMINAL. Titular; existing in name 
only; not real or substantial; connected with 
the transaction or preceeding in name only, 
not in interest. 


NOMINAL DAMAGES. In practice. 
A trifling sum awarded to a plaintiff in an 
action, where there is no substantial loss or 
injury to be compensated, but still the law 
recognizes a technical invasion of his rights 
or a breach of the defendant's duty. 


NOMINAL DEFENDANT. A person 
who is joined as defendant in an action, not 
because he is immediately liable in damages 
or because any specific relief is demanded as 
against him, but because his connection with 
the subject-matter is such that the plaintiff's 
action would be defective, under the technical 
rules of practice, if he were not joined. 


NOMINAL PARTNER. A person who 
appears to be a partner in a firm, or is so 
represented to persons dealing with the firm, 


NOMINAL PLAINTIFF 819 


er who allows his name to appear in the style 
of the firm or to be used in its business, in 
the character of a partner, but who has no 
actual interest in the firm or business. Story, 
Partn. § 80. 


NOMINAL PLAINTIFF. One who 
has no interest in the subject-matter of the 
action, haying assigned the same to another, 
(the real plaintiff in interest, or “use plain- 
tiff,”) but who must be joined as plaintiff, 
because, under technical rules of practice, 
the suit cannot be brought directly in the 
name of the assignee. 


NOMINATE. To propose foran appoint- 
ment; to designate for an office, a privilege, 
& living, ete. 


NOMINATE CONTRACTS. In the 
civillaw. Contracts having a proper or pecul- 
iar name and form, and which were divided 
into four kinds, expressive of the ways in 
which they were formed, viz.: (1) Real, 
which arose ex ve, from something done; (2) 
verbal, ex verbis, from something said; (3) 
literal, ex literis, from something written; 
and (4) consensual, ex consensu, from some- 
thing agreed to. Calvin. 


NOMINATIM. By name; expressed one 
by one. 


NOMINATING AND REDUCING. 
A mode of obtaining a panel of special jurors 
in England, from which to select the jury to 
try a particularaction. The proceeding takes 
place before the under-sheriff or secondary, 
and in the presence of the parties’ solicitors. 
Numbers denoting the persons on the sheriff's 
list are put into a box and drawn until forty- 
eight unchallenged persons have been nomi- 
nated. Each party strikes off twelve, and 


the remaining twenty-four are returned as | 


the “panel,” (gq. ¢.) This practice is now 
only employed by order of the court or judge. 
(Sm. Ac, 130; Juries Act 1870,§ 17.) Sweet. 


NOMINATION. An appointment or 
designation of a person to All an oflice or dis- 
charge a duty. Theact of suggesting or pro- 
posing & person by name asa candidate for 
aD office. 


NOMINATION TO A LIVING. In 
English ecclesiastical law. The rights of 
nominating and of presenting to a living are 
distinct, and may reside in different persons. 
Presentation is the offering a clerk to the 
bishop. Nomination is the offering a clerk 
to the person who has the right of present- 
ation. Brown. ; 


NON ACCEPTAVIT 


NOMINATIVUS PENDENS. Lat. A 
nominative case grammatically unconnected 
with the rest of the sentence in which it 
stands. The opening words in the ordinary 
form of a deed inter partes, “This indent- 
ure,” ete., down to “whereas,” though an 
intelligible and convenient part of the deed, 
are of this kind. Wharton. 


NOMINEH. Lat. By name; by the name 
of; under the name or designation of. 


NOMINE PQG:NZ. In the name ofa 
penalty. In the civil law, a legacy was said 
to be left nomine pene where it was left for 
the purpose of coercing tie heir to do or not 
to do something. Inst. 2, 20, 36. 

The term has also been applied, in English 
law, to some kinds of covenants, such asa 
covenant inserted in a lease that the lessee 
shall forfeit a certain sum on non-payment 
of rent, or on doing certain things, as plow- 
ing up ancient meadow, and the like. I 
Crabb, Real Prop. p. 171, § 155. 


NOMINEE. One who hag been nominat- 
ed or proposed for an office. 


NOMOCANON. (1) A collection of can- 
ons and imperial laws relative or conformable 
thereto. The first nomocanon was made by 
Johannes Scholasticus in 554, Photius, pa- 
triarch of Constantinople, in 883, compiled 
another nomocanon, or collation of the civil 
laws with the canons; this is the most ecele- 
brated. Balsamon wrote a commentary up- 
onitin 1180. (2) A collection of the ancient 
canons of the apostles, councils, and fathers, 
without any regard lo imperial constitutions. 
Such is the nomovanon by M. Cotelier, Enc. 
Lond. 


NOMOGRAPHER. One who writes on 
the subject of laws. 


NOMOGRAPHY. A treatise or descrip- 
tion of laws. 


NOMOTHETA. A lawgiver; such as 
Solon and Lycurgus among the Greeks, and 
Cesar, Pompey, and Sylla among the Romans. 
Calvin. 

NON. Lat, Not. The common particle 
of negation. 


NON-ABILITY. Want of ability to do 
an act in law, asto sue. A plea founded up- 
on such canse. Cowell. 


NON-ACCHEPTANCH. The refusal te 
accept anything. 


NON ACCEPTAVIT. Inpleading. The 
name of a plea to an action of assumpsit 


NON-ACCHESS 820 


brought against the drawee of a bill of ex- 
change by which he denies that he accepted 
the same. 


NON-ACCESS. In legal parlance. ‘Is 
term denotes the absence of opporbunitics 
for sexual intercourse between husband and 
wile; or the absence of such intercourse, 


Won aceipi debent verba in demon- 
atrationem falsam, que competunt in 
limitationem veram. 


whieh may have effect by way of true limita- 
tion. Bac. Max. p. 59, reg. 18; Broom, Max. 
642. 


NOW ACCREVIT INFRA SEX AN- 
WOS. It did not accrue within six years. 
The name of a plea by which the defendant 
sets up the statute of limitations against a 
cause of action which is barred after six 
years. 


WON-ACT. A forbearance from action; 
slie contrary to act. 

NON-ADMISSION. ‘The refusal of ad- 
mission. 


WON-AGHE. Lack of reyuisite legal age. 
The condition of a person who is under 
twenty-one years of age, in some cases, 
and under fourteen or twelve in others; mi- 
novity. 


Non alio modo puniatur aliquis quam 
secundum quod se habet condennatio. 
3 Inst. 217. A person may not be punished 
differently than according to what the sen- 
tence enjoins. 


Won aliter a significatione verborum 
recedi oportet quam cum manifestum 
est, alind sensisse testatorem. Wemust 
never depart from the signification of words, 
unless it is evident that they are not con- 
formable tothe will of thetestator. Dig, 32, 
69, pr.; Broom, Max. 568. 


NON-APPARENT EASEMENT. A 
non-cortinous or discontinuous easement. 
18 N. J. Eq. 262. See Easement. 


WON-APPHARANCE., A failure of ap- 
pearance; the omission of the defendant to 
appear within the time limited. 


NON-ASSESSABLE. This word, placed 
upon a certificate of stack, does not cancel or 
impair the obligation to pay the amount due 
upon the shares created by the acceptance 
and holding of such certifieate, At most its 
legal effect is a stipulation against liability 
from furilier assessment or taxation after 


Words ought not to | 
be taken to import a false demonstration | 


NON COMPUS MENTIS 


the entire subscription of one hundred per 
cent. shall have been paid. 91 U. 8. 45, 


NOW-ASSUMPSIT. The general issue 
in the action of esstwmpsit; being a plea by 
which the defendant avers that “he did not 
undertake” or promise as alleged. 


NOW-ASSUMPSIT INFRA SEX AN- 
WOS. He did not undertake within six 
years. ‘The name of the plea of the statute 
oft limitations, in the action of essumpsit. 


Won auditur perire volens, Hs who 
is desirous to perish is not heard. Best, Ey. 
428, § 385. He who confesses himself guilty 
of a crime, with the view of meeting death, 
will not be heard. A maxim of the foreign 
law of evidence. Id. 


NON-BAILABLE. Not admitting of 
bail; not requiring bail. 

WON BISIN IDEM. Not twiee for the 
same; that is, a man shall not be twice tried 
for the same crima. This maxim of the civil 
law (Code, 9, 2,9, 11} expresses the same 


principle as the familiar rule of our iaw that, 


aman shall not be twice “put in jeopardy” 
for the same offense. 


NON CEPIT. Us did not take, The 
general issue in replevin, where the action is 
for the wrongful taking of the property; put- 
ting in issue not oniy the taking, but the 
place in which the taking is stuted to have 
been made. Steph. Pl. 157, 167. 


NON-CLAIM. The omission or neglect 
of him who cught to claim his right within 
the time limited by law; a8 within «a yearand 
a day where a continual claim was required, 
or Within five years after a finy had been 
levied, Termes de la Ley, 


NON-COMBATANT. <A person con- 
nected with an army or navy, but for pur- 
poses other than fighting; such as the sur- 
geons and chaplains, Also a neutral. 


WON-COMMISSIONED. A non-com- 
missioned officer of the army or militia is a 
subordinate officer whe holds his rank, not 
by commission from the executive authority 
of the state or nation, but by appointment by 
a superior officer. 


NOW COMPOS MENTIS, Lat. Not 
sound of mind; insane. ‘This is a very gen- 
eral term, embracing all varieties of mental 
derangement. 

Coke has enumerated four different elagsey of 
persons who are deemedin law to be non eam- 
potes mentis: First, avi idiot, or fool natural; see- 
ond, he wie was of good and sound mindand mey:. 


! 


lunatic, lunaticous qui gaudet lucidis intervallis, 
who sometimes is of good sound mind and memo- 
ry, and sometimes non compos mentis; fourth, 
ene who ia non compos mentis by his own act, as 
adru:kard. Co. Litt., 27a; 4 Coke, 124; 6 Neb. 
404. 


Non conredentur ctiationes prius- 
quem exprimatur super qua re fieri 
debet citatio. 12 Coke, 47. Summonses 
should not be grantad before it is expressed 
on what matter the summons ought to be 
mads. 


NON CONCESSit. Lat. He did not 
grant. The name ofa plea deaying a grunt, 
which could be made only by a stranger. 


NON-CONFORMIST. In English law. 
Cn who refuses to comply with others; one 
who refuses to join in the established forms 
of worship. 

Nen-conformists are of two sorts: (1) 
Such as absent themselves from divine wor- 
ship in the Established Church through total 
{rreligion, and attend the service of no other 
persuasion; (2) such as attend the religious 
service of another persuasion, Wharton. 


Non consentit qui errat. LBract. fol. 
44. He who mistakes dues not consent. 


WOW CONSTAT. Lat. It does not ap- 
peat; it is ust clear or evident. A phrase 
used in general to state some conclusion ag 
not necessarily following alihough it may ap- 
pear on its face to follow. 


NOUM-CONTINUOUS EASEMENT. 
A non-appareat or discontinuous easement. 
18 N. J. Eq. 262. See EASEMENT. 


NON CULFABILIS. Lat. In pleading. 
Nob guilty. It is usnatly abbreviated “7207 
cul,” 


NOW DAMNIFICATUS. Lat. Not 
{njurec. This is a plea in an action of debt 
on an indemaity bond, or bond conditioned 
“to keep the plaiatiff harmless and indemni- 
fied,” etc. Itis in the nature of a plea of 


NON CONCEDANTOUR, ETC. 821 


performance, being used where the defendant 
means to allege that the plaintiff has been | 
kopt havmlees and indemnified, according to 
tae tenor of the condition. Steph. Pl. (7th 
Ed ) 309, 301. 


Won dat qui non habet. He who has 
not does not give. Lofft, 258; Broom, Max. | 
457. 


Won debeo melioris conditionis esse, 
quam suctor meus a quo jus in me 
transit. Iought not to be in better condi- | 


NON DIFFERUNT, ETC. 


ery, but by the act of God has lost it; third, a | tion than he to whose rights I succeed. Dig. 


50, 1,175, 1. 


Non debet actozi licere quod reo non 
permittitur. A plaintiff ought not to be 
allowed what is not permitted to a defend- 
ant. Aruleofthe civil law. Dig. 50, 17, 41. 


Won debet adduci exceptio ejus rei 
cujus petitur dissolutio. A plea of the 
same matter the dissolution of which is 
sought [by the action] ought not to be 
brought forward. Broom, Max. 166, 


Non debet alii nocere, quod inter 
alios actum est. A person ought not to 
be prejudiced by what has been done be- 
tween others. Dig. 12, 2, 10. 


Non debet alteri per alterum iniqua 
conditio inferri. A burdensome condition 
ought not to be brought upon one man by 
the act of another. Dig. 50, 17, 74. 


Non debet cui plus licet, quod minus 
est non licere. He to whom the greater is 
lawful ought not to be debarred from the less 
as unlawful. Dig. 50, 17, 21; Broom, Max. 
176. 


Non debet dici tendero in prsjudi- 
cium ecclesiastica liberatatis quod pro 
rege et republica necessarium videtur. 
2 Inst. 625. ‘That which seems necessary for 
the king and the state ought not to be said to 
tend to the prejudice of spiritual liberty. 


Won decet homines dedere causa. non 
cognita. Itis unbecuming to surrender men 
when no cause is shown. 4 Johns. Ch. 106, 
114; 3 Wheel. Crim. Cas. 473, 482. 


NON DECIMANDO. 
CIMANDO. 


See Dz non De- 


Non decipitur qui scit se decipl. 5 
Coke, 60. He is not deceived who kuows 
himself to be deceived, 


NON DEDIT. Lat. 
did not grant. 
don. 


NON-DELIVERY. Neglect, failure, or 
refusal to deliver goods, on the part of a car- 
rier, vendor, bailes, ete, 


NON DETINET. Lat. He does not 
detain. The name of the general issue in 
the action of detinue. 1 Tidd, Pr. 645, 

The general issue in the action of repleyin, 
where the action is for the wrongful deten- 
tion only. 2 Burrill, Pr. 14. 


In pleading. He 
The general issue in forme 


Non differunt que concordant ra, 
tametsi non in vorbis iisdem. Those 


NON DIMISIT 


N things do not differ which agree in substance, 


though not in the same words. Jenk. Cent. 


p- 70, case 32. 


NON DIMISIT. L. Lat. Hedid not de- 
mise. A plea resorted to where a plaintiff 
declared upon a demise without stating the in- 
denture in anaction of debt for rent. Also, a 
pleain bar, in replevin, to an avowry for ar- 
rears of rent, that theavowant did not demise. 


NON-DIRECTION. Omission on the 
part of a judge to properly instruct the jury 
upon a necessary conclusion of law. 


NON DISTRINGENDO. 
to distrain, 


A writ not 


Non dubitatur, etsi specialiter vendi- 
tor evictionem non promiserit, re evic- 
ta, ex empto competere actionem. It 
is certain that, although the vender has not 
given a special guaranty, an action ea empto 
lies against him, if the purchaser is evicted. 
Code, 8, 45,6: Broom, Max. 768. 


Non efticit affectus nisi sequatur ef- 
fectus. The intention amounts to nothing 
unless the effect follow. 1 Rolle, 226, 


Won erit alia lex Rome, alia Atheenis; 
alia nune, alia posthac; sed et omnes 
gentes, et omni tempore, una lex, et 
sempiterna, et immorialis continebit. 
There will not be one law at Rome, another 
at Athens; one law now, another hereafter; 
but one eternal and immortal! law shall bind 
together all nations throughout all time. 
Cic. Frag. de Repub. lib. 3; 3 Kent, Comm. 1. 


Non est arctius vinculum inter hom- 
ines quam jusjurandum. There is no 
closer [or firmer] bond between men than an 
oath. Jenk. Cent. p. 126, case 54. 


Won est certandum de regulis juris. 
There is no disputing about rules of law. 


Won est consonum rationi, quod coge 
nitio accessorii In curia christianitatis 


impediatur, ubi cognitio cause princi- | 


palis ad forum ecclesiasticum noscitur 
pertinere. 12 Coke, 65. Itis unreasonable 
that the cognizance of an accessory matter 
should be impeded in an ecclesiastical court, 
when the cognizance of the principal cause 
is admitted to appertain to an ecclesiastical 
court. 


Won est disputandum contra prin- 
cipia negantem. Co. Litt. 343. We can- 
not dispute against a4 man who denies first 
principles. 


822 


NON FEIT, ETC. 


NON EST FACTUM. lat. A plea by 
way of traverse, which occurs in debt on bond 
| or other specialty, and also in covenant. It 
denies that the deed mentioned in tlie declara- 
tion is thedefendant’s deed. Under this, the 
defendant may contend at the trial that the 
deed was never executed in point of fact; 
but he cannot deny its validity in point of 
law. Wharton. 

The plea of non est factum is a denial of 
the execution of the instrument sued upon, 
and applies to notes or other instruments, as 
well as deeds, and applies only when the ex- 
ecution of the instrument is alleged to be 
the act of the party filing the plea, or adopted 
by him. Code Ga. 1882, § 3472. 


NON EST INVENTUS. Lat. Heis 
not found. The sheriff's return to process re 
quiring him to arrest the body of the defend- 
ant, when the latter is not found within his 
jurisdiction. It is often abbreviated “n. e. 
t.,” or written, in English, “not found.” 


Non est justum aligquem antenatum 
post mortem facere bastardum qui tote 
tempore vitz suw pro legitimo habe- 
batur. It is not just to make anelder-borna 
bastard after his death, who during his life 
time was accounted legitimate. 12 Coke, 44. 


Non est novum ut priores leges ad 
posteriores trahantur. It is no new thing 
that prior statutes should give place to later 
ones. Dig. 1, 3, 836; Broom, Max. 28. 


Won est regula quin fallet. Thereis no 
rule but what may fail. Off. Exec. 212, 


Won est singulis concedendum, quod 
per magistratum publice possit fieri, ne 
ocecasio sit majoris tumultus faciendi, 
That is not to be conceded to private persons 
which can be publicly done by the magistrate, 
lest if be the occasion of greater tumults. 
Dig. 50, 17, 176. 


Won ex opinionibus singulorum, sed 


| ex communi usi, nomina exaudiri de- 


bent. ‘The names of things ought to be un- 
derstood, not according to the opinions of in- 
dividuals, but according to common usage. 
Dig. 53, 10, 7, 2. 


Won facias malum, ut inde fiat bonum. 
You are not to do evil, that good may be or 
result therefrom. 11 Coke, 74a; 5 Coke, 308. 


NON FECIT. Lat. He did not make 
it. A plea in an action of assumpsit ona 
promissory note. 3 Man. & G. 446. 


NON ¥FECIT VASTUM CONTRA 


| PROHIBITIONEM. He did not commit 


NON HAC IN FQEDEKA VENI 


waste against the prohibition. A pleato an 
action founded on a writ of estrepement for 
waste. 8 Bl. Comm. 226, 227. 


NON HAC IN FQ:DERA VENI. I 
did not agree to these terms. 


Non impedit clausula derogatoria quo 
mittus ad eadem poctestate res dissol- 
vantur a qua constituuntur. A derogatory 
clause does not impede things from being 
dissolved by the same power by which they 
are created. Broom, Max. 27. 


NON IMPEDIViT. Lat. He did not 
impede. The plea of the general issue in 
quareimpedit. The Latin form of the law 
French “ne disturba pas.” 


NON IMPLACITANDO ALIQUEM 
DE LIBERO TENEMENTO SINE 
BREVI. A writ to prohibit bailiffs, etc., 
from distraining or impleading any man 
touching his freehold without the king’s 
writ. Reg. Orig. 171. 


Won in legondo sed in intelligendo 
legis consistunt. The laws consist not in 
being read, but in being understood. 8 
Coke, 167a. 


NON INFREGIT CONVENTIO- 
NEM. Lat. He did not break the contract. 
The name of a plea sumetimes pleaded in the 
action of covenant, and intended asa general 
issue, but held to be a bad plea; there being, 
preperly speaking, no gencral issue in that 
action. 1 Tidd, Pr. 356. 


NON-INTERCOURSE. 1. The refusal 
of one atate or nation to have commercial 
dealings with another; similar to an em- 
bargo, (qg. 0.) 

2. The absence of access, communication, 
or sexual relations between husband and 
wife, 


NON INTERFUI. I was not present. 
A reporter’s note. TT. Jones, 10. 


NON INTROMITTANT CLAUSE. 
In English law. ‘A clause of a charter of a 
municipal borough, whereby the borough is 
exempted from the jurisdiction of the jus- 
tices of the peace for the county. 


NON INTROMITTENDO, QUANDO 
BREVE PRACIPE IN CAPITH SUB- 
DOLE IMPETRATUR. A writ addressed 
to the justices of the bench, or in eyre, com- 
manding them not to give one who, under 
eolor of entitling the king to land, etc., as 


holding of him in capite, had deceitfully ob- 


tained the writ called “precipe in capite,” 


823 


| legal. 


a nn ne ee ee USUI SSRs 


NON MERCHANDIZANDA, ETC. 


any benefit thereof, but to put him to his 
writ of right. Reg. Orig. 4. 


NON-ISSUABLE PLEAS. Those up- 
on which a decision would not determine 
the action upon the merits, as a plea in 
abatement. 1 Chit. Archb. Pr. (12th Ed.) 
249, 


NON-JOINDER. The omission to join 
some person as party to a suit, whether 
as plaintiff or defendant, who ought to 
have been so joined, according to the rules 
of pleading and practice. 


NON JURIDICUS. Not judicial; not 
Dies non juridicus is a day on which 
legal proceedings cannot be had. 


WON-JURORS. In Englishlaw. Per 
sons who refuse to take the oaths, required 
by law, to support the government. 


Won jus ex regula, sed regula ey 
jure. The law does not arise from the rule, 
(or maxim,) but the rule from the lay 
Tray. Lat. Max. 384. 


Non jus, sed seisina, facit stipitem. 
Not right, but seisin, makes a stock. Fleta, 
lib. 6, c.2, § 2. It is not a mere right to en- 
ter on lands, but actual seésin, which makes 
a person the root or stock from which all fut- 
ure inheritance by right of blood must be de- 
rived. 2 Bl Comm. 209, 312. See Broom, 
Max. 525, 527. 


Won licet quod dispendio licet. That 
which may be [done only] at a loss is not al- 
lowed [to be done.] The law does not per- 
mit or require the doing of an act which will 
result only in loss. ‘The law forbids such 
recoveries whose ends are vain, chargeable, 
and unprofitable. Co. Litt. 1276. 


NON LIQUET. Lat. It is not clear. 
In the Roman courts, when any of the judges, 
after the hearing of a cause, were not satis- 
fied that the case was made clear enough for 
them to pronounce a verdict, they were priv- 
ileged to signily this opinion by casting a bal- 
lot inscribed with the letters “N. L.,” the 
abbreviated form of the phrase “nen diguet.” 


NON MERCHANDIZANDA VICTU- 
ALIA. An ancient writ addressed to jus- 
tices of assize, to inquire whether the magis- 
trates of a town sold victuala in gross or by 
retail during the time of their being in office, 
which was contrary te an obsolete statute; 
and te punish them if they did. Reg. Orig. 
184. 


N 


NON MOLESTANDO 


WON MOLESTANDO. A writ thatlay 
for a person who was molested contrary to 
the king’s protection granted tohim. Reg. 
Orig. 184. 


Won nasci, et natum mori, paria sunt. 
Not to be born, and to be dead-born, are the 
same. D°: 


NON-NEGOTIABLE. Not negotiable; 


' not capable of passing title or property by in- 


dorsement and delivery. 


Won obligat lex nisi promulgata. A 
law is not obligatory unless it be promul- 
gated. 


Non observata forma, infertur adnul- 
latio actus. Where formis not observed, an 
annulling of the act is inferred or follows. 
12 Coke, 7. 


NOW OBSTANTE. Lat. Notwith- 
standing, Words anciently used in pablic 
and private instruments, intended to preclude, 
in advance, any interpretation contrary to 
certain declared objects or purposes. Burrill. 

A clause frequent in old English statutes 
and letters patent, (so termed from its initial 
words,) importing a license from the crown 
to do athing which otherwise a person would 
be restrained by act of parliament from do- 
ing. Crabb, Com. Law, 570; Plowd. 501; 
Cowell. 

A power in the crown todispense with the 
laws in any particular case. This was abol- 
ished by the bill of rights at the Revolution. 
1 Bi. Comm. 342. 


WON OBSTANTE VEREDICTO, 
Notwithstanding the verdict. A judgment 
entered by order of court for the plaintiff, al- 
though there has been a verdict for the de- 
fendant, is so called. 


Wou officit conatus nisi scquatur ef- 
fectus. An attempt does not harm unless a 
consequence follow. 11 Coke, 98. 


NON OMITTAS. A clause usually in- 
serled in writs of execution, in England, di- 
recting the sheriff “not to omit” to execute 
the writ by reason of any liberty, because 
there are many liberties or districts in which 
the sheriff has no power to execute process 
unless be has special authority. 2 Steph. 
Comm. 630. 

Won omne damnum inducit injuriam. 


It is not every loss that produces an injury. 
Braet. fol. 456. 


Won omne quod licet honestum est. 
It is not everything which is permitted that 


824 


i 
a $$ 


NON POTEST, ETC. 


is honorable. 
121. 


Won cmnium ques a majoribus nos- 
tris constituta sunt ratio reddi potest. 
There eannot be given a reason for all the 
things which have been established by our 
ancestors. Branch, Prine.; 4 Coke, 78; 
Broom, Max. 157. 


NON-PAYMENT. The neglect, failure, 
or refusal of payment of a debt or evidence 
of debt when due. 


Dig. 50,17, 144; 4 Johns. Ch. 


NON-PERFORMANCE. Neglect, fail. 
ure, or refusal to do or perform an act stipu- 
lated to be done. Failure to keep the terms 
of a contract or covenant, in respect to acts 
or dvings agreed upon. 


Non pertinet ad judicem secularem 
cognoscere de iis que sunt mere spi- 
ritualia annexa. 2 Inst. 488. It belongs 
not to the secular judge to take cognizance 
of things which are merely spiritual. 


NON-PLEVIN. Inold Englishiaw. De- 
faultin not replevying land in due time, when 
the same was taken by the king upon ade 
fault. The consequence thereof (loss of seis- 
in) wags abrogated by St. 9 Edw. IIT. ec. 2. 


NON PONENDIS IN ASSISIS ET 
SURATIS. A writ formerly granted for 
freeing and discharging persons from serv- 
ing on assizes and juries. Fitzh. Nat. Brey. 
165. 


Won possessori incumbit necessitag 
probandi possessiones ad so pertinere. 
A person in possession is not bound to prove 
that the possessions belong to him. Broom, 
Max. 714. 


Non potest adduci exceptio ejus rei 
cujus petitur dissolutio. An exception 
of the same thing whose avoidance is sought 
cinnot be made. Broom, Max. 166. 


Non potest probari quod probatum 
non relevat. 1 Exch. 91,92. That cannot 
be proved which, if proved, is immaterial. 


Non potest quis sine breviagere. No 
one can sue without a writ. Fleta, lib. 2,¢, 
13, § 4. A fundamental rule of old practice, 


Non potest rex gratiam facere cum 
injuria et damnoaliorum. Theking can- 
not confer a favor on one subjeet which oe- 
easions injury and toss to others. 3 Inst, 
236; Broom, Max. 63. 


Won potest rex subditum renitentem 
onerare impositionibus. The king cannot 


Tt 
NON POTEST VIDERI, ETC. 


load a subject with imposition against his 
consent. 2 Inst. 61. 


Won potest videri desisse habere qui 
nunguam habduit, He cannot be considered 
us having ceased to have a thing who never 
had it, Dig. 50, 17, 208. 


NON PROSEQUITUR. Lat. If, in 
the proceedings in an action at law, the plain- 
tiff neglects to take any of those steps which 
he onglitto lake within the time preseribed by 
the practice of the court for that purpose, the 
defendant may enter judgment of nom pros. 
against hin, whereby it is adjudged that the 
plaintiff does not follow up (nen prosequitur) 
his anit as he ought to do, and therefore the 
defendant ought to have judgment against 
him. Smith, Act. 96. 


NON QUIETA MOVERE. Lat. Not 
to disturb what is settled. A rule express- 
ing the same principle as that of stare decisis, 


(g-.) 


Non quod dictum est, sed quod factum 
est inspicitur. Not what is said, but what 
is done, is regarded. Co, Litt. 36a. 


Non refert an quis assensum suum 
prefert verbis, aut rebus ipsis et factis. 
10 Coke, 52. It matters not whether a man 
gives his assent by his words or by his acts 
and deeds. 


Non refert quid ex equipollentibus 
flat. 5 Coke, 122. It matters not which of 
[two] equivalents happen. 


Non refert quid notum sit judici, si 
notum non sit in forma judicii. It mat. 
ters not what is known to a judge, if it be 
not known in judicial form, 3 Bulst, 115. 
A leading maxim of modern law and prac- 
tice, Best, Ev. Introd. 31, § 38. 


Non refert verbis an factis fit revo- 
eatio. Cro. Car. 49. It matters not whether 
a reyoeation is made by words or deeds. 

NON-RESIDENCE. Residence beyond 
the limits of the particular jurisdiction, 

In ecclesiastical law. The absence of 
spiritual persons froin their bencfices, 


NON-RESIDENT. One who is not a 


dweller within some jurisdiction in question; | 


not an inhabitant of the state of the forum, 


NON-RESIDENTIO PRO CLERICO 
REGIS. A wril, addressed to a bishop, 
charging him not to molest a clerk employe 
in the royal service, by reason of his non-res- 


825 


NON SUM INFORMATUS 


idence; in which case he is to be discharged. 
Reg. Orig. 58. 


Won respondebit minor nisi in causa 
dotis, et hoe pro favore doti, 4 Coke, 
71. A minor shall not answer unless in a 
case of dower, and this in favor of dower. 


NON SANA MENTIS. Lat. Of un- 
sound mind. TFleta, lib, 6, c. 40, $1. 


NON-SANE. As “sane,” when applied 
to the mind, means whole, sound, in 4 health- 
ful state, “non-sane” must mean not whole, 
not sound, notin a healthful state; that is, 
broken, impaired, shattered, infirm, weak, 
diseased, unable, either from nature or acci- 
deni, to perform the rational functions com- 
mon to man upon the objects presented to it. 
5N, J. Law, 589, 661, 


NON-SANE MEMORY. Unsound 
memory; unsound mind. 


NON SEQUITUR. Lat. 
follow. 


Tt does not 


Non solent que abundant Vitiare 
seripturas. Superfluities [things which 
abound] do not usually vitiate writings. 
Dig. 50, 17, 94. 


Won solum quid licet, sed quid est 
conveniens, est considerandum; quia 
nihil quod est inconveniens est licitum. 
Not only what is lawful, but what is proper 
or convenient, is to be cansidered; because 
nothing that is inconvenient is lawful. Co 
Litt. 66a, 


NON SOLVENDO PECUNIAM AD 
QUAM CLERICUS MULCTATUR PRO 
NON-RESIDENTIA. A wril prohibiting 
an ordinary to take a pecuniary mulet imposed 
on a clerk of the sovereign for non-residence. 
Reg. Writ. 59. j 


NON SUBMISSIT. Lat. He did not 
submit, A plea to an action of debt, ona 
bond to perform an award, to the effect that 
the defendant did nut submit to the arbitra- 
tion. 


WON SUI JURIS. Lat. Not his own 


master. ‘The opposite of sez juris, (gq. .) 
NON SUM INFORMATUS. Lat. I 


arm not informed; I have not been instructed. 
The name of a species of judgment by de- 
faull, which is entered when thedefendiant’s 
attorney announces that he is not informed of 
any unswer te be given by him; usually in 
pursuance of a previous arrangement be- 
tween the parties. 


NON-SUMMONS, ETC. 


N NON-SUMMONS, WAGER OF LAW 
OF. The mode in which a tenant or defend- 
ant in a real action pleaded, when the sum- 
mons which followed the original was not 
served within the proper time. 


Won temere credere est nervus sapi- 
entices. 5 Coke, 114: Not to believe rashly 
is the nerve of wisdom. 


NOW TENENT INSIMUL. Lat. In 
pleading. A plea to an action in partition, 
by which the defendant denies that he and 
the plaintiff ave joint tenants of the estate 
in question, 


NON TENUIT. Lat. Hedid not hold. 
This is the name of a plea in bar in replevin, 
by which the plaintiff alleges that he did not 
hold in manner and form as averred, being 
given in answer to an avowry for rent in ar- 
rear, See Rosc. heal Act. 638. 


WON-TENURE. A pleaina real action, 
by which the defendant asserts, either as to 
the whole or as to some part of the land men- 
tioned in the plaintiff’s declaration, that he 
does nob hold it. Pub. St. Mass, 1882, p. 
J293. 


WON-TERM. The vacation between 
two terms of a court, 
NON-TERMINUS. The vacation be- 


tween term and term, formerly calied the 
time or days of the king’s peace. 


NON-USER. Neglect to use. Neglect 
to use a franchise; neglect to exercise an of- 
fice. 2 Bl. Comm. 153. Neglect or omis- 
sion to use an easement or other right. 3 
Kent, Comm. 448. A right acquired by use 
may be lost by non-user. 


NON USURPAVIT. Lat. He has not 
usurped. A form of traverse, in an action 
or proceeding against one alleged to have 
usurped an oflice or franchise, denying the 
usurpation charged. See 53 Pa. St. 62. 


Won valebit felonis generatio, nec ad 
hereditatem paternam vel maternam; 
si autem ante feloniam generationem 
fecorit, talis generatio succedit in hrere- 
ditate patris vel matris a quo non fu- 
erit felonia perpetrata. 3 Coke, 41. The 
olispring of a felon cannot succeed either to 


a maternal or paternal inheritance; but, if . 


he had offspring before the felony, such off- 
spring may sueceed as to the inheritance of 
the futher or mother by whom the felony 
was not committed. 


826 


NON ET DECIMA 


NON VALENTIA AGERE. Inability 
tosue. 5 Bell, App. Cas. 172. 


Non valet confirmatio, nisi ille, qui 
confirmat, sit in possessione rei vel ju- 
ris unde fieri debet confirmatio; et eo- 
dem modo, nisi ille cui confirmatio fit 
sit in possessione. Co. Litt. 295. Con- 
firmation is not valid unless he who confirms 
is either in possession of the thing itself or 
of the right of which conlirmation is to be 
made, and, in like manner, unless he to 
whom confirmation is made is in possession. 


Non valet exceptio ejusdem rei cujus 
petitur dissolutio. A plea of the same 
matter the dissolution of which is sought, is 
not valid. Called a “maxim of law and com- 
mon sense.” 2 Eden, 134. 


Non valet impedimentum quod de 
jure non sortitur effectum. 4 Coke, 3la, 
An impediment which does not derive its ef- 
fect from law is of no force. 


Non verbis, sed ipsis rebus, leges im- 
ponimus. Cod. 6, 43,2. We impose laws, 
not upon words, but upon things themselves. 


Non videntur qui errant consentire. 
They are not considered to consent who 
commit a mistake. Dig. 50, 17, 116, § 2; 
Broom, Max. 262. 


Non videtur consensum retinuisse si 
quis ex prescripto minantis aliquid 
immutavit. He does not appear to have re- 
tained consent, who has changed anything 
through menaces. Broom, Max. 278. 


Non videtur perfecte cujusque id essa, 
quod ex casu auferri potest. Tiat does 
not seem to be completely one’s own which 
can be taken from him on occasion. Dig. 50, 
7, Laas tT. 


Non videtur quisquam id capere quod 
ei necesse est alii restitutere. Dig. 50, 
17, 51. No one is considered entitled to re- 
cover that which he must give up to another. 


Non videtur vim facere, qui jure suo 
utitur et ordinaria actione experitur. 
He is nol decmed to use force who exercises 
his own right, and proceeds by ordinary ac- 
tion. Dig. 50, 17, 155, 1. 


NON ET DECIM As. Payments maas 
to the church, by those who were tenants of 
ehurch-farms. The first was a rent or duty 
for things belonging to husbandry; the ser- 
ond was claimed in right of the church. 


. Wharton. 


NONAGIUM 


NONAGIUM, or NONAGEH. A ninth 
part of movables which was paid to the clergy 
on the death of persons in their parish, and 
claimed on pretense of being distributed to 
pious uses. Blount. 


NONES. In the Roman calendar. The 
fifth and, in March, May, July, and October, 
the seventh day of the month. So called be- 
eause, counting inclusively, they were nine 
days from the ides. Adams, liom. Ant. 355, 
857. 


NONFEASANCE. The neglect or fail- 
ure of a person to do someact which heought 
todo. The term is not generally used to de- 
note a breach of cuntract, but rather the fail- 
ure to perform a duty towards the public 
whereby some individual sustains special 
damage, a3 where a sheriff fails to execute a 


writ. Sweet, 
NONWNA. In old ecclesiastical law. A 
nun. Nonnus,a monk, Spelman. 


NONSENSE. Unintelligible matter in 
a written agreement or will. 


NONSUIT. Not following up the cause; 
failure on the part of a plaintiff to continue 
the prosecution of his suit. An abandon- 
ment or renunciation of his suit, by a plain- 
tiff, either by omitting to take the next nec- 
essary steps, or voluntarily relinquishing the 
action, or pursuant to an order of the court. 
An order or judgment, granted upon the trial 
of a cause, that the plaintiff has abandoned, 
or shall abandon, the further prosecution of 
his suit. 

A voluntary nonsuil is one incurred by 
the plaintifi’s own act or omission, and is a 
judgment entered against him as a conse- 
quence of his abandoning or not following 
up his cause, or being absent when his pres- 
ence is required. 

An involuntary nonsuit is a judgment en- 
tered against the plaintiff by direction of the 
court wheu, upon trial, he has not adduced 
any evidence on which the jury could find a 
verdict under the rules of law. 


NOOK OF LAND. 
half. 


NORMAL. Opposed to exceptional; that 
state wherein any body most exactly comports 
in all its parts with the abstract idea thereof, 
and is most exactly fitted to perform its 
proper functiona, is entitled “normal.” 


NORMAL LAW. A term employed by 
modern writers on jurisprudence to denote 
the law as it affects persons who are ina nor- 


Twelve acres anda 


827 


cg LV wee ee e_=SEO 


NOT GUILTY BY STATUTE 


mal condition; #. e., sud juris and sound in 
mind, 


NORMAN FRENCH. The tongue in 
which several formal proceedings of state 
are still carried on. The language, having 
remained the same since the date of the 
Conquest, at which it was introduced into 
England, is very different from the French 
of this day, retaining all the peculiarities 
which at that time distinguished every prov- 
ince from the rest. A peculiar mode of pro- 
nuneiation (considered authentic) is handed 
down and preserved by the otlicials who 
have, on particular occasions, to speak the 
tongue. Norman French was the language 
of our leval procedure till the 36 Edw. ITI. 
Wharton. 


NMORROY. InEnglishlaw. The tifleof 
the third of the three kings-at-arms, or pro- 
vincial heralds. 


NORTHAMPTON TABLES. Longev- 
ity and annuity tables compiled from bills of 
mortality kept in All Saints parish, Eng- 
land, in 1735 1780, 


Woscitur a sociis. It is known from its 
associates. 1 Vent. 225. The meaning ofa 
word is or may be known from the uceom- 
panying words. 3 Term R. 37; Broom, Max. 
588. 


Noscitur ex socio, qui non cognos- 
citur ex se. Moore, 817. He who cannot 
be known from himself may be known from 
his associate. 


NOSOCOMI. In the civillaw. Persons 
who have the management and care of hos- 
pitals for paupers. 


NWOT FOUND. These words, indorsed 
on 4 bill of indictment by a grand jury, have 
the same effect as the indarsement “Not a 
true bill” or “Zgnoramus.” 


NOT GUILTY. A plea of the general 
issue in the actions of trespass and case and 
in criminal prosecutions. 

The form of the verdict in criminal cases, 


where the jury acquit the prisoner. 4 BI. 
Comm. 861, 
NOT GUILTY BY STATUTE. In 


English practice. A plea of the general is- 
sue by a defendant in a civil action, when he 
intends to give special matter in evidence by 
virtue of some act or acts of parliament, in 
which case he mustadd the reference te such 
act or acts, and state whether such aets are 
public or otherwise. But, if a defendant so 
plead, he will not be allowed to plead any 


NOT POSSESSED 


other defense, without the leave of the court 
ora judge. Mozley & Whitley. 


WOT POSSESSED. A special traverse 
used in an action of trover, alleging that de- 
fendant was not possessed, at the time of ac- 
tion brought, of tie chattels alleged to have 
been converted by him. 


NWOT PROVEN. A verdict in a Scotch 
criminal trial, to the effect that the guilt of 
the accused is not made out, though his in- 
nocence is not clear. | 


NOTA. In the civil law. A mark or 
brand put upen a person by the law. Mac- 
keld, Rom. Law, § 185. 


NOTA. In civi) and old European law. 
Short-hand characters or mirks of contrac- 
tion, in which the emperors’ secretaries took 
down what they dictated. Spelman; Calvin. 


NOTARIAL. 


NOTARIUS. Lat, In Roman law. A 
draughtsman; an amanuensis; a short-hand 
writer; one who took notes of the proceed- 
ings in the senate or a court, or of what was 
dictuted to him by another; one wlio prepared 
draughts of wills, conveyances, ete. 

In old English law. A scribe orscrive- 
ner who made short draughts of writings 
and other instruments; a notary. Cowell. 


NOTARY PUBLIC. A public oflicer 
whose function is to attest and certify, by 
his hand and olficial seal, certain classes of 
documents, in order to give them credit and 
authenticity in foreign jurisdictions; to take 
acknowledgments of deeds and other convey- 
ances, and certify the same; and to perform 
certain oflicial acts, chiefly in commercial 
matters, such as the protesting of notes and 
bills, the noting of foreign drafts, and wnarine 
protests in cases of loss or damage. 


NOTATION. In English probate prac- 
tice, notation is the aci ot making a memo- 
randum of some special circumstance on a 
probate or letters of administration, Thus, 
where a grant is made for the whole personal 
estate of the deceased within the United King- 
dom, which can only be done in the case of a 
person dying domiciled in England, the fact 
of his having been so domiciled is noted on 
the grant. Coote, Prob. Pr. 36; Sweet. 


NOTE, v. To make a brief written state- 
ment; to enter a memorandum; as to note 
ah exception. 


Taken by a notary. 


NOTE, 2. An abstract, a memoranduin; 
an informal statement in writing. Also a 


828 


NOTICE 


negotiable promissory note. Sce Bovent 
Nots; Norrs; JupGMEent Note; Prom- 
IssORY NOTE; SOLD NOTE. 


NOTE A BILL. When a foreign bill 
has been dishonored, it is usual for a notary 
public to present it again on the same day, 
and, if it be not then paid, to make a minute, 
consisting of his initials, the day, month, 
and year, and reason, if assigned, of non-pay- 
ment. The making of this minute is called 
“noting the bill.” Wharton. 


NOTH OF A FINE. In old conyey- 
ancing. One of the parts of a fine of lands, ° 
being un abstract of the writ of covenant, 
and the concord; naming the parties, the 
parcels of land, and the agreement. 2 Bl. 
Comm. 351. 


NOTE OF ALLOWANCE. In English 
practice. This was a note delivered by a 
master to a party to a canse, who alleged that 
there was error in law in the record and pro- 
ceolings, allowing him to bring error. 


NOTE OF HAND. 
& promissory note. 


NOTE OF PROTEST. A memorandum 
of the fact of protest, indorsed by the notary 
upon the bill, at the time, to be afterwards 
written out at length. 


NOTH OR MEMORANDUM. The 
statute of frauds requires a “note or mem- 
orandum” of the particular transaction to 
be made in writing and signed, ete. By this 
is generally understood an informa! minute 
or memorandum made on the spot, See 14 
Johns, 492, 


NOTHS. In practice. Memoranda made 
by a judge on a trial, as to the evidence ad- 
duced, and the points reserved, ete. A copy 
of the judge’s notes may be obtained trom 
his clerk. 


NOTHUS. Lat. In Romanlaw. <A nat- 
ural child or a person of spurious birth. 


A popular name for 


NOTICH. Knowledge; information; the 
result of observation, whether by the senses 
or the mind; knowledge of the existence of 
a fact or state of affairs; the means of knowl- 
edge. Used in this sense in such phrages ag 
“A. had notice of the conversion,” “a pur- 
chaser without notice of fraud,” etc, 

Notice is either (1) statutory, i. ¢., made so by 
legislative enactment; (2) actual, which brings 
the knowledge of a fact directly home to thea 
party; or (3) constructive or implied, which ig 
uo more than evideuce of facts which raise such a 
strong presumption of notice that equity will not 


NOTICE 8 


allow the presumption to be rebutted. Constructive 
notice may be subdivided into: (a) Where there 
exists actual notice of matter, to which equity has 
added constructive uotice of facts, which an in- 
quiry after such matter would have elicited; and 
(b) where there has been a designed abstinence 
from inquiry for the very purpose of escaping no- 
tice. Wharton. : 

Notice is actual when it is directly and person- 
ally given to the party to be notified; and con- 
structive when the party, by circumstances, is 
put "pon inquiry, and must be presumed to have 
hed notice, or, by judgment of Jaw, is held to have 
had notice. 4 Ga, 149. 

Every person who has actual notice of circum- 
stances suflcient to put a prudent man upon in- 
quiry a5 to a particular fact has constructive no- 
tice of the fact itself in all cases in which, 
by prosecuting such inquiry, he might have 
learned such fact. Civil Code Ual. § 19. 

Actual notice consists in expreas infermation of 
a fact, Constructive notice is notice imputed by 
the lav to a person not having actual notice; and 
every person who has actual notice of circum- 
stances sufivient to put a prudent man upon In- 
quiry as to a particular fact, and who omits to 
make such inquiry with reasonable diligence, is 
deemed te baye constructive notice of the fact 
itself. 1 Dak. T. 399, 400,46 N, W. Rep. 1154. 


In another sense, “notice” means infor- 
mation of an act to be done or required to be 
done; as of a motion to be made, a trial to be 
had, a plea or answer to be put in, costs to 
be taxed, ete, 


Tu this sense. “notice” means an advice, or writ- 
ten warning, in more or tess formal shape, intend- 
od to apprise a person of some proceeding in which 
hls interests are involved, or informing him of 
some fact which it is his right to know and the 
duty of the notifying party to communicate. 


NOTICE, AVERMEMNT OF. In plead- 


ing. The allegation ina pleading that notice | 


has been given. 


WOTICHE IN LiEU OF SERVICE, 
In lieu of personally serving a writ of sum- 
mons (cr other legal process,) in English 
practice, the court oceasionally allows the 
plaintiff (or other party) to give notice in licu 
of service, such notice being such as willin all 
probability reach the party. This notice is 
peculiarly appropriatein the case of a foreign- 
ar out of the jurisdiction, whom it is desired 
to serve with a writ of summons, Sweet. 


NOTICE OF ACTION. Whenit is in- 
tended to sue certain particular individuals, 
as in the case of actiona against justices of 
the peace, itis neeéssary in some jurisdictions 
to give them notice of the action some time 
before, 


NWOTICE OF APPEARANCE. A no 
tice given by defendant to a plaintiff that he 
appears in the action in person or by attor- 
ney. 


29 


NOTICE TO PRODUCE 


NOTICE OF DISHONOR. When a 
negotiable bill or note is dishonored by nen- 
acceptance on presentment for acceptance, 
or by non-payment at its maturity, it is the 
duty of the holder to give immediate notice 
of such dishonor to the drawer, if it be a bill, 
and te the indorser, whether it be a bill or 
note. 2 Daniel, Neg. Inst. § 970. 


NOTICE OF JUDGMENT. It ia re 
quired by statute in several of the states that 
the party for whom the verdict in an action 
has been given shall serve upon the other 
party or his attorney a written notice of the 
time when judgment isentered, The timeal- 
lowed for taking an appeal runa from such 
notice. 


NOTICE OF LIS PENDENS. A no- 
tice filed for the purpose of warning all per- 
sons that the title to certain property is in 
litigation, and that, if they purchase the de- 
fendant's claim to the same, they are in dan- 
ger of being bound by an adverse judgment. 


NOTICE OF MOTION. A notice in 
writing, entitled in a cause, stating that, ona 
certain day designated, a motion will be made 
to the court for the purpose or object stated. 


NOTICE OF PROTEST. A notice 
given by the holder of a bill or note to the 
drawer or indorser that the bill hag been pro- 

| tested for refusal of payment or acceptance. 


| WNOTICK OF TRIAL. A notice given 
| by one of the parties in an action to the other, 
after an issue has been reached, that he in- 
tends to bring the cause forward tor trial at 
the next term of the court, 


WOTICH TO ADMIT. In the practice 
of the English high court, either party to an 
action may call on the ether party by notice 
to admit the existence and execution of any 
document, in order to save the expense of 
proving it at the trial; and the party refus- 
ing to admit must bear the costs of proving 
it unless the judge certifies that the refusal 
to admit was reasonable. No costs of proy- 
ing a document will in general be allowed, 
unless such a notice is given. Rules of 
Court, xxxlf, 2; Sweet. 


NOTICE TO PLEAD. Thisisa notice 
which, in the practice of some states, is pre- 
requisite to the taking judgment by default. 
It proceeds from the plaintiff, and warns the 
defendant that he must plead to the declara- 
tion or complaint within a prescribed time. 


NOTICE TO PRODUCE. In practice. 
A noties in writing, given in an action at 


NOTICE TO QUIT 


law, requiring the opposite party to produce 
a certain described paper or document at 
the trial. Chit. Archb. Pr. 280; 3 Chit. 
Gen. Pr. 884. 


NOTICE TO QUIT. A written notice 
given by a landlord to his tenant, stating that 
the former desires to repossess himself of the 
demised premises, and that the latter is re- 
quired to quit and remove from the same 
at a time designated, either at the expira- 
tion of the term, if the tenant is in under 
a lease, or immediately, if the tenancy is at 
will or by sufferance. The term is also some- 
times applied to a written notice given by 
the tenant to the landlord, to the effect that 
he intends to quit the demised premises and 
deliver possession of the same on a day 
named, 


NOTIFY. In legal proceedings, and in 
respect to public matters, this word is gen- 
erally, if not universally, used as importing 
a notice given by some person, whose duty 
it was to give it, in some manner prescribed, 
and to some person entitled to receive it, or 
be notified. 31 Conn, 384. 


NOTING. <As soon as a notary has 
made presentment and demand of a bill of 
exchange, or at some seasonable hour of the 
same day, he makes a minute on the bill, 
or on a ticket attached thereto, or in his 
book of registry, consisting of his initials, the 
month, day, and year, the refusal of accept- 
ance or payment, the reason, if any, assigned 
for such refusal, and his charges of protest. 
This is the preliminary step towards the pro- 
test, and is called “noting.” 2 Daniel, Neg. 
Inst. § 989. 


NOTIO. Lat. In the civil law. ‘The 
power of hearing and tryinga matter of fact; 
the power or authority ofa judex, the power 


ot hearing causes and of pronouncing sen- 


tence, without any degree of jurisdiction. 
Calvin. 


WOTITIA. Knowledge; information; 
intelligence; notice. 


Wotitia dicitur a noscendo; et notitia 
non debet claudicare. Notice is named 
from a knowledge being had; and notice 
ought not to halt, [é. e., be imperfect.] 6 
Coke, 29. 


NOTORIAL. The Scotch form of “ nota- 
rial,” (q. 0.) Bell. 


NOTORIETY. The state of being noto- 
rious or universally well known, 


830 


NOVATION 


NOTORIOUS. In the law of evidence, 
matters deemed notorious do not require te 
be proved. There does not seem to be any 
recognized rule as to what matters are deemed 
notorious. Cases have occurred in which the 
state of society or public feeling has been 
treated as notorious; e. g., during times 
of sedition. Best, Ev. 354; Sweet. 


NWOTOUR. In Seotch law. Open; ne. 
torious. A notour bankruptis a debtor who, 
being under diligenee by horning and caption 
of his creditor, retires to sanctuary or ab- 
sconds or defends by force, and is afterwards 
found insolvent by the court of session. Bell. 


Nova constitutio futuris formam im- 
ponere debet non preteritis. A new 
state of the law ought to affect the future, 
not the past. 2 Inst. 292; Broom, Max. 34, 
37. 


NOVA CUSTUMA. ‘he name ofan im- 
position or duty. See ANTIQUA CUSTUMA, 


NOVA STATUTA. New statutes. An 
appellation sometimes given to the statutes 
which have been passed since the beginning 
of the reign of Edward III, 1 Steph, Comm, 
68. 


NOVA NARRATIONES. New counts. 
The collection called “Nove Narrationes” 
contains pleadings in actions during the reign 
of Edward Ill. It consists principally of dec- 
larations, as the title imports; but there are 
sometimes pleas and subsequent pleadings. 
The Articult ad Novas Narrationes is usual- 
ly subjoined to this little book, and is asmall 
treatise on the method of pleading. It first 
treats of actions and courts, and then goes 
through each particular writ, and the deela- 
ration upon it, accompinied with directions, 
and illustrated by precedents. 38 Reeves, 
Eng. Law, 152; Wharton. 

NOVALE. Land newly plowed and con. 
verted into tillage, and which has not been 


tilled before within the memory of maa; also 
fallow land. 


NOVALIS. Inthecivillaw. Land that 
rested a year after the first plowing. Dig. 
50, 16, 50, 2. 


Novatio non presumitur. Novation is 
not presumed. Halk. Lat. Max. 109. 


NOVATION. Novation is the substitu- 
tion of a new debt or obligation for an exist- 


ing one. Civil Code Cal. § 1530; Civil Code 
Dai. § 868. 


Novation is a contract, consisting of two 
stipulations, —one to extinguish an existing 


SSS 


NOVATION 


obligation; the other to substitute a new one 
In its place. Civil Code La. art. 2185. 

The term was originally a technical term 
of the civil law, but is now in very general 
use in linglish and American jurisprudence. 


In the civil law, there are three kinds of nova- 
tion: (1) Where the debtor and creditor remain 
the same, but a new debt takes the place of the old 
one; (2) where the debt remains the same, but a 
new debtoris substituted; (3) Where the debiand 
debtor remain, but a new creditor is substituted. 
48 Miss, 451. 


NOVEL ASSIGNMENT. 
ASSIGNMENT. 


WOVEL DISSEISIN. See Assise or 
Nove. DIssEIsin. 


NOVELLA, (or NOVELLA CON- 
STITUTIONES.) New constitutions; gen- 
erally translated in English, “Novels.” The 
Latin name of those constitulions which 
were issued by Justinian after the publica- 
tion of his Code; most of them being orig- 
inally written in Greek. After his death, a 
collection of 168 Novels was made, 154 of 
which had been issued by Justinian, and the 
rest by his successors. These were after- 
wards included in the Corpus Juris Civilis, 
(q. v.,) and now constitute one of its four 
principal divisions. Maeckeld. Rom. Law, 
§ 80; 1 Kent, Comm. 541. 


NOVELLA LEONIS. The ordinances 
of the Emperor Leo, which were miade from 
the year 887 till the year 893, are so called. 
These Novels changed many rules of the Jus- 
tinian Jaw. This collection contains 113 
Novels, written originally in Greek, and 
afterwards, in 1560, translated into Latin by 
Agilaus. Mackeld. Rom. Law, § 84. 


NOVELS. The title given in English to 
the New Constitutions (Novelle Constitu- 
tiones) of Justinian and his successors, now 
forming a part of the Corpus Juris Civilis. 
See NOVELLA. 


NOVELTY. An objection to a patent 
or claim for a patent on the ground that the 
invention is not new or original is called an 
objection “for want of novelty.” 


NOVERCA, Lat. 
step-mother, 


NOVEBRINT UNIVERSI PER 
PRASENTES. Know all men by these 
presents. Formal words used at the com- 
mencement of deeds ef release in the Latin 
forms. 


NOVI OPERIS NUNCIATIO. Lat. 
Denunciation of, or protest against, a new 


See NEw 


Inthe eivillaw. A 


831 


NOVUS HOMO 


work. This was a species of remedy in the civil 
law, available to a person who thought his 
rights or his property were threatened with 
injury by the act of his neighbor in erecting 
or demolishing any structure, (which was 
called a “new work.”) In such ease, he 
might go upon the ground, while the work 
was in progress, and publicly protest against 
or forbid its completion, in the presence of 
the workmen or of the owner or his repre- 
sentative. 


NOVIGILD. In Saxon law. A pecuni- 
ary satisfaction for an injury, amounting to 
nine times the value of the thing for which 
it was paid. Spelman. 


NOVISSIMA RECOPILACION. (Lat- 
est Compilation.) The title of a collection of 
Spanish law compiled by order of Don Carlos 
TV. in 1805. 1 White, Recop. 355. 


NOVITAS. Lat. 
new thing. 


Novelty; newness; a 


Novitas non tam utilitate prodest 
quam novitate perturbat. A novelty does 
not benefit so much by its utility as it disturbs 
by its novelty. Jenk. Cent. p. 167, case 23. 


NOVITER PERVENTA, or NOVI- 
TER AD NOTITIAM PERVENTA. In 
ecclesiastical] procedure. Facts “newly come” 
to the knowledge of a partytoacause. Leave 
to plead facts noviter perventa is generally 
given, in a proper cuse, even after the plead- 
ings are closed. Phillim. Eee. Law, 1257; 
Rog. Ece. Law, 723. 


NOVODAMUS. In old Scotchlaw. (We 
give anew.) The name given toa charter, 
or clause in a charter, granting a renewal of 
aright. Bell. 


Novum judicium non dat novum jus, 
sed declarat antiquum; quia judicium 
est juris dictum cot per judicium jus est 
noviter revelatum quod diu fuit vela- 
tum. A new adjudication does not make a 
new law, but declares the old; because ad- 
judication is the utterance of the law, and 
by adjudication the law is newly revealed 
which was for a long time hidden. 10 Coke, 
42. 


NOVUM OPUS. In the civil law. A 
new work. See Novi Oreris NuNOLA'TIO.. 


NOVUS HOMO. Lat. A new man. 
This term is applied toa man who has been 
pardoned of a crime, and so made, as it were, 


| a “new man.” 


N 


NOXA 


WOXA. Lat. In the civil law. This 
term denoted any damage or injury done to 
persons or property by an unlawful act com- 
titted by a man’s slave or animal, An ac- 
tion for damages lay against the master or 
owner, who, however, might escape further 
responsibility,by delivering up the offending 
agent to the party injured. “ora” was also 
used as the designation of the offense com- 
mitted, and of its punishment, and sometimes 
of the slave or animal doing the damage, 


Noxa sequitur caput. The injury [7.¢., 
liability te make good an injury caused bya 
slave] follows the head or person, [2, ¢., af 
taches to his master.] Heineec, Elem. 1, 4, 
%. 8, § 1281. 


NOXAL ACTION. An action for dam- 
age done by slaves or irrational animals, 
Sandars, Just. Inst. (5th Ed.) 457. 


NOXALIS ACTIO. Lat. In the civil 
law. An action which lay ugainst the mas- 
ter of a slave, for some offense (as theft or 
robbery) committed or damage or injury done 
by the slave, which was called “nova.” Usn- 
ally translated “noxal action.” 


WOXIA. Lat. In the civil law. An 
offense committed or damage done bya slave. 
Inst. 4, 8, 1. 


WOXIOUS. Hurtful; offensive; offen- 
sivetothesmell. 1 Burrows, 337, The word 
“noxious” includes the complex idea both of 
insalubrity and offensiveness. Id. 


WUBILIS. In thecivillaw. Marriage. 
able; one who is of a proper age to be mar- 
ried. 


NUCES COLLIGERE. Tocollect nuts. 
This was formerly one of the works or serv- 
wes iroposed by lords upon their inferior ten- 
ants. Paroch. Antig. 495. 


Nuda pactio obligationem mon parit. 
A naked asreement [2 ¢., wilhout consid-~ 
eration] Pn beget an obligation. Dig. 
2, 14, 7, 4; Broom, Max. 746. 


NUDA PATIENTIA. Lat. 
ferance. 


NUDA POSSESSIO. 
mere possession. 


Mere suf- 


Lat. Bara or 


Wuda ratio et nuda pactio non lgant 
aliquem debitorem. Naked reason and 
naked promise do not bind any debtor, Fle- 
ta, i. 2, c. 60, § 25. 


WUDE, Naked. This word is apptied 
metaphorically to a variety of subjects to in- 


8u2 


NUISANCE 


dicate that they are lacking in some essential 
legal requisite. 


NUDE CONTRACT. One made with- 
out any consideration; upon which no action 
will lie, in conformity with the maxim “ee 
nudo pacio non oritur actio.” 2 Bil. Comm. 
445, 


NUDE MATTER. A bare allegation of 
a thing done, unsupported by evidence. 


NUDUM PACTUM. Lat. A _ naked 
pact; a bare agreement; a promise or under- 
taking made without any consideration fer it, 


Nudum pactum est ubi nulla subeat 
causa preter conventionem; sed ubi 
subest causa, fit obligatio, et parit ac. 
tionem. A naked contract is where there 


‘49 no consideration except the agreement; 


vut, Where there ig a consideration, it be- 
comes an obligation and gives a right of ac. 
tion. Plowd. 309; Broom, Max. 745, 750. 


Wudum pucitum ex quo non oritur 
actio. Nudwm pactum is that upon which 
no action arises. Cod, 2, 3, 10; Id. 5,14, 1; 
Broom, Max. 676. 


NUEVA RECOPILACIGN. (New 
Compilation.) The title of a code of Span- 
ish law, promulgated in the year 1567, 
Schm. Civil Law, Introd, 79-81. 


NUGATORY. Futile; ineffectual; in- 
valid; destitute of conslraining force or yi- 
tality. A legislative act may be “nugatory” 
because unconstitutional. 


NUISANCE. Anything that unlawfully 
worketh hurt, inconvenience, or damage. 3 
Bl. Comm. 216, 

That class of wrongs that arise from the 
unreasonable, unwarrantable, or unlawful 
use by a person of his own property, either 
real or personal, or from his own improper, 
indecent, or unlawful personal conduct, work- 
ing an ubstruction of or injury to the right 
of another or of the public, and producing 
such material annoyance, inconvenience, dis- 
comfort, or hurt that the law will presume a 
consequent damage, Wood, Nuis. § 1 

Anything which is injurious to health, or is in- 
decent or offensive to the senses, or an obstruction 
to the free use of property, so as to interfere with 
the comfortable enjoyment of Jife or property, or 
unlawfully obstructs the free passage or usa, inthe 
customary manner, of any navigabie lake or river, 
bay, stream, canal, or basin, or any publie park, 
square, street, or highway, ia s nuisance. Civil 
Code Cal. § #479. 

Nuisanees are either publicor private. A 
public nuisance is one which damages all 


NUISANCE 


persons who come within the sphere of its 
operation, though it may vary in its effects 
on individuals. A private nuisance is one 
Limited in its injurious effeefs Lo one or few 
individuals. Generally, 2 public nuisance 
gives no right of action to any individual, 
bunt must be abated by a process instituted in 
the name of the state. A private nuisance 
gives a right of action to the person injured. 
Code Ga. 1882, § 2997. 


A public nuisance is one which affects at the 
game time an entira community or neighborhood, 
or any considerable number of persous, although 
the extent of the annoyance or damages inflicted 
upon individuals may be unequal. Civil Code Cal, 
§ 3480. 

A private nuisance is anything done to the hurt 
oY annoyances of the lands, tenements, or heredita- 
ments of another, It produces damage to but one 
or a few persons, and cannot be suid to be publia 
8 BL Comm. 216; 80 N. Y. 592. 

A mixed nuisance is one whieh, while producing 
Injury to the public at large, does some special 
damags to some individual or class of individuals. 
Wood, Nuis. § 18. 


NUISANCE, ASSISE OF. Inold prac- 
ties. .A judicial writ directed to the sheriff 
of the county in which a nuisance existed, in 
which it was stated that the party injured 
compla:red of some particular fact done ad 
nocumenium libert tenementi sui, (to the nui+ 
ganze uf his freehold,) and commanding the 
sheriff io summon an assize (that is, a jury) 
to view the premises, and have them at the 
next commission of assizes, that justice 
mighi be done, ete. 3 Bl. Comm. 221, 


NUL. Nv; none. A law French nega- 
tive parcic.e, commencing many phrases. 


NUL AGARD. No award. The name 
of 3 plea in an action on anarbitration bond, 
by which the defendant traverses the naking 
of any legal award. 


Nut charter, nul vente, ne nul dons 
vault perpetualment, si le donor n’est 
reise al temps de contracts de deux 
droits, sc. del droit de possession et del 
droit de propertie. Co. Litt. 266. No 
grant, no sale, no gift, is valid forever, un- 
less the doncr, at the time of the contract, is 
seised of two rigits, namely, the right of 
possession, and the right of property. 


NUL DISSHISIN. In pleading. No 
disseisin. A plea of the general issue in a 
tea] action, by which the defendant denies 
that there was any disseisin. 


Nui ne doit s’enrichir aux depens 
des autres. Noone ought to enrich him- 
self at the expense of others. 

AM-DICT.LAW—odd 


833 


NULLA PACTIONE, ETC. 


Nul prendra advantage de son tort 


demesne. Noone shall take advantage of 
his own wrong. 2 Inst. 713; Broom, Max. 
290. 


Nul sans damage avera error ou at- 
taint. Jenk. Cent. 323. No one shall haye 
error or aftaint unless he has sustained dam- 
age. 


NUL TIEL CORPORATION. Na 
such corporation [exists.] The form of a 
plea denying the existence of an alleged cor- 
poration. 


NUL TIEL RECORD. No auch rec- 
ord. <A plea denying the existence of any 
such record as that alleged by the plaintiff. 
It is the general plea in an action of debt on 
a judgment, 


NUL TORT. In pleading. <A plea of 
the general issue to a real action, by which 
the defendant denies that he committed any 
wrong. 


NUL WASTE. No waste. The name 
of a plea in an action of waste, denying the 
committing of waste, and forming the gen- 
eral issue. 


NULL. Naught; of no validity or effect. 
Usually coupled with the word “void;” as 
“null and void.” 


¥ULLA BONA. Lat. No goods. The 
name of the return made by the sheriff toa 
writ of execution, when he has not found 
any goods of the defendant within his juris- 
diction on which he could levy. 


Nulla curia ques recordum non habet 


| potest imponere finem neque aliquem 


mandare carceri; quia ista spectant tan- 
tummodo ad curias de recordo. 8 Coka, 
60. No court whieh has not a record can 
impose 4 fine or commit any person to pris- 
on; because those powers belong only to 
courts of record, 


WNulia emptio sine pretio esse potest. 
There can be no sale withoutaprice. 4 Pick, 
189. 


Nulla impossibilia aut inhonesta sunt 
presumenda; vera autem et honesta at 
possibilia. No things that are impossible 
er dishonorable are to be presumed; but 
things that are true and honorable and pos- 
sible. Co. Litt. 780. 


Nulla pactione effiici potest ut dolug 
preestetur. By ne agreement can it be ef- 
fected that a fraud shall be practiced. rand 


NULLA VIRTUS, ETC. 834 


| will not be upheld, though it may seem to be 


authorized by express agreement. 5 Maule 


& S. 466; Broom, Max. 696. 


Wulla virtus, nulla scientia, locum 
suum et dignitatem conservare potest 
sine modestia. Co. Litt. 394. Without 
modesty, no virtue, no kndwledge, can pre- 
Berve its place and dignity. 


Nulle terre sans seigneur. No land 
without a lord. A maxim of feudal law. 
Guyot, Inst. Feod. ¢. 28. 


Nulli enim res sua servit jure servi- 
tutis. No one can havea servitude over his 
own property. Dig. 8, 2, 26; 17 Mass. 443; 
2 Bouv. Inst. no. 1600. 


NULLITY. Nothing; no proceeding; 
an act or proceeding in a cause which the op- 
posite party may treat as though it had not 
taken place, or which has absolutely no legal 
force or eifect, 


NULLITY OF MARRIAGE. Theen- 
tire invalidity of a supposed, pretended, or 
attempted marriage, by reason of relation- 
ship or incapacity of the parties or other 
diriment impediments. An action seeking 
a decree declaring such an assumed marriage 
to be null and void is called a suit of “nulli- 
ty of marriage.” It differs from an action 
for divorce, because the latter supposes the 
existence of a valid and lawful marriage. 
See 2 Bish. Mar. & Div. §§ 289-294. 


NULLIUS FILIUS. 
body; a bastard. 


The son of no- 


Nullius hominis anuctoritas apud nos 
valero debet, ut meliora non sequeremur 
si quis attulerit. The authority of no man 
ought to prevail with us, so far as to prevent 
our following better [opinions] if any one 
should present them. Co. Litt. 3836. 


NULLIUS IN BONIS. 
property of no person. 


NULLIUS JURIS. 
law. Of no legal force. 
§ 24. 


NULLUM ARBITRIUM. L. Lat. No 
award. The name of a plea in an action on 
an arbitration bond, for not fulfilling the 
award, by which the defendant traverses the 
allegation that there was an award made. 


Among the 


In old English 
Fleta, lib. 2, c. 60, 


WNullum crimen majus est inobedien- 
tia, No crime is greater than disobedience. 
Jenk, Cent. p. 77, cuse 48. Applied to the 
refusal of an officer to return a writ. 


NULLUS DICITUR, ETC. 


Nullum exemplum est idem omnibus. 
No example is the same for all purposes, 
Co. Litt. 212¢. No one precedent is adapted 
to all cases. A maxim in conveyancing. 


NULLUM FECERUNT ARBI- 
TRIUM. L.Lat. In pleading. The name 
of a plea to an action of debt upon an obliga- 
tion for the performance of an award, by 
which the defendant denies that he submitted 
to arbitration, ete. Bac. Abr. “Arbitr.” 
etc., G. 


Nullum iniquum est presumendum 
injure. 7 Coke, 71. No iniquity is to be 
presumed in law. 


Nullum matrimonium, ibi nulla dos. 
No marriage, no dower. 4 Barb. 192, 194. 


Nullum simile est idem nisi quatuor 
pedibus currit. Co. Litt. 3. No like is 
identical, unless it run on all fours. 


Nullum simile quatuor pedibus 
eurrit. No simile runs upon four feet, (or 
ail fours, as it is otherwise expressed.) No 
simile holds in everything. Co. Litt. 3a; 
2 Story, 143. 


NULLUM TEMPUS ACT. In English 
law. A name given to the statute3 Geo. III. 
c. 16, because that act, in contravention of 
the maxim “Wullum tempus occurrit regi,” 
(ne lapse of time bars the king,) limited the 
crown’s right to sue, ete., to the period of 
Bixby yeuras. 


Nullum tempus aut locus oceurrit 
regi. No time or place affects the king. 2 
Inst. 273; Jenk. Cent. 838; Broom, Max. 65. 


Nullum tempus occurrit reipublice. 
No time runs [time does not run] against 
the commonwealth or state. 11 Grat. 572. 


Nullus alius quam rex possit episcopo 
demandare inquisitionem faciendam. 
Co. Litt. 1384. No other than the king can 
command the bishop to make an inquisition. 


WNullus commodum ecapere potest de 
injuria sua propria. No one can obtain 
an advantage by his own wrong. Co. Litt. 
148; Broom, Max. 279. 


WNullus debet agere do dolo, ubi alia 
actio subest. Whereanother form ofaction 


is given, no one ought to sue in the action ds 
| dolo. 


7 Coke, 92. 


Wullus dicitur accessorius post telo- 
niam, sed ille qui novit principalem 
feloniam fecisse, et illum receptavit et 


NULLUS DICITUR, ETC. 


comfortavit. 3 Inst. 138. No one is called 


an “accessary” after the fact but he who 


knew the principal to have commiited a fel- 
ony, and received and comforted him. 


Nultus dicitur felo principalis nisi 
actor, aut qui preesens est, abettans aut 
Buxilians ad feloniam faciendam. No 
one is called a “principal felon” except the 
party actually committing the felony, or the 
party present aiding and abetting in its com- 
mission. 


Nullus idoneus testis in re sua intel- 
ligitur. No person is understood to be a 
eompetent witness in his own cause. Dig. 
22, 5, 10. 


Wullus jus alienum forisfacere potest. 
No man can forfeit another’s right. Fleta, 
hb, c. 28, § 11. 


Nullus recedat 6 curia cancellaria 
sine remedio. No person should depart 
from the court of chancery without a rem- 
edy. 4 Hen. VII. 4; Branch, Prine. 


Nullus simile est idem, nisi quatuor 
pedibus currit. No like is exactiy identical 
unless it runs on all fours. 


Nullus videtur dolo facere qui suo 
jure utitur. No one is considered to act 
with guile who uses his own right. Dig. 50, 
17, 55; Broom, Max. 130. 


NUMERATA PECUNTIA. In the civil 
law Money told or counted; money paid 
by tale. Inst. 3, 24, 2; Bract. fol. 35. 


NUMMATA. The price of anything in 
money, a8 denariata is the price of a thing 
by computation of pence, and dibrata of 
pounds. 


NUMMATA TERR. An acre of 


land. Spelman. 
NUNC PRO TUNC. Lat. Now for 
then. A phrase applied to acts allowed te be 


done after the time when they should pe done, 
with a retroactive effect, ¢. ¢., with the same 
effect as if regularly done. 


WUNCIATIO. In thecivillaw. A sol- 


emn declaration, usually in prohibition of a | 


thing; a protest. 


NUNCIO, The permanent official repre- 
sentative of the pope at a foreign court or 
seat of government. Webster. They are 
ealled “ordinary” or “extraordinary,” accord- 
ing as they are sent for general purposes or 
on a special mission. 


835 


NUNTIUS 


NUNCIUS. In international law. A 
messenger; a minister; the pope’s legate, 
commonly called a “nuncio.” 


NUNCUPARE. Lat. In the civil law. 
To name; to pronounce orally or in words 
without writing. 


NUNCUPATE. 
solemnly. 


To declare publicly and 


NUNCUPATIVE WILL. A will which 
depends merely upon oral evidence, having 
been declared or dictated by the testator in 
his last sickness before a sufficient number 
of witnesses, and afterwards reduced te 
writing. 


NUNDINZ. Lat. In the civil and old 
English law. A fair. In nundinis et mer- 
catis, in fairs and markets. Bract. fol. 56. 


NUNDINATION. Traffic at fairs and 


| Inarkets; any buying and selling. 


Nunquam crescit ex postfacto prw- 
teriti delicti sestimatio. ‘The character of 
a past offense is never aggravated by a sub- 
sequent act or matter. Dig. 50, 17, 139, 1; 
Bac. Max. p. 38, reg. 8; Broom, Max. 42. 


Nunquam decurritur ad extraordina- 
rium sed ubi deficit ordinarium. We 
are never to resort to what is extraordinary, 
but [until] what is ordinary fails. 4 Inst. 


Nunquam fictio sine lege. Thereisno 
fiction without law. 
NUNQUAM INDEBITATUS. Lat. 


Never indebted. The name of a plea in an 
action of indebitatus assuimpsit, by which 
the defendant alleges that he is not indebted 
to the plaintiff, 


Nunguam nimis dicitur quod nun- 
quam satis dicitur. What is never suffi- 
ciently said is never saidtoomuch. Co. Litt 
375. 


Nunquam prescribitur in false. 
There is never a prescription in case of false- 
hood or forgery. A maxim in Scotch law. 
Bell. 


Nunquam res humans prospere suc- 
cedunt ubi negliguntur divine. Co. Litt. 
15. Human things never prosper where die 
vine things are neglected. 


NUNTIUS. 
messenger. 


In old English practice. A 
One who was sent to make an 


NUPER OBIIT 836 NYCTHEMERON 


N excuse for a party summoned, or one who ex- NUPTIAL. Pertaining to marriage; con- 
plained as for a friend the reason of a party’s | stituting marriage; used or done in mar- 
absence. Bract. fol. 845, An officer of a riage. 


court; & summoner, apparitor, or beadle. g : 
BES: # Opps 7 Nuptias non concubitus sed consen- 


Oowet. sus facit. Co. Litt. 33. Not cohabitation 
NUPER OBIIT. Lat. In practice. The but consent makes the marriage. 


name of a writ (now abolished) which, in the NURTURE. The act of.taking care of 


Bere) tay tor # sister igo-leieees ae ' children, bringing them up, and educating 
possessed by her coparcener of lands and nn 


tenements whereof their father, brother, or ; 
any common ancestor died seised of an estate NURUS. Lat. In the civil Jaw. A 
in fee-simple. Fitzh. Nat. Brev. 197, son’s wife; a daughter-in-law. Oalvin. 


NUPTI2: SECUNDA, Lat. A second NYCTHEMERON. The whole natural 


inarriage. In the canon law, this term in- day, or day and night, consisting of twenty- 
ciuded any marriage subsequent to the first. | four hours. Enc. Lond. 


Q. O. 


837 


OATH SUPPLETORY 


OG, 


©.C. An abbreviation, in the civil law, 
for “opecousilio,” (q.v.) In American law, 
these letters are used as an abbreviation for 
“Orphans’ Court,” 


O.N. B. An abbreviation for “Old Na- 
tura Brevium.” See Natura BREVIUM. 


©. Ni. It was the course of the English 
exchequer, as soon as the sheriff entered into 
and made up his account for issues, amercia- 
ments, ete., to mark upon each head “O. Ni.,” 
which denoted oneratur, nist habeat suffici- 
entem exonerationem, and presently he be- 
came the king’s debtor, and a d@ebet was set 
upon his head; whereupon the parties para- 
vaile became debtors to the sheriff, and were 
discharged against the king, etc. 4 Inst. 116; 
Wharton. 


0.8. An abbreviation for “Old Style,” 
or “Old Series.” 


OATH. An external pledge or assevera- 
tion, made in verification of statements mude 
or to be made, coupled with an appeal toa 
sacred or venerated object, in evidence of the 
serious and reverent state of mind of the 
party, or with an invocation to a supreme 
being to witness the words of the party and 
to visit him with punishment if they be false. 

A religious asseveration, by which a per- 
son renounces the mercy and imprecates the 
vengeance of heaven, if he do not speak the 
truth. 1 Leach, 430. 

The calling upon God to witness that what is said 
by the person sworn is true, and invoking the di- 
vine vengeance upon his head, if what he says is 
false. 10 Ohio, 123. 

Oaths are either judicial or extrajudicial ; 
the former, when taken in some judicial pro- 
ceeding or in relation to some matter con- 
nected with judicial proceedings; the latter, 
when not taken in any judicial proceeding, 
or without any authority of Jaw, though 
taken formally before a proper person. 

An oficial oath is one taken by an officer 
when he assumes charge of his office, where- 
by he declares that he will faithfully discharge 
the duties of the same, or whatever else may 


be required by statute in the particular cause. | 


An assertery oath is one required by law 
other than in judicial proceedings and upon 
induction to oflice; such, for example, as an 
oath to be made at the custom-house relative 
to goods imported. 


| 


A corporal oath 1s one taken by the form 
of laying the hand on or kissing a copy of 
the gospels, 

The terms “corporal oath” and “solemn oath” 
are synonymous; and an oath taken with the up- 
lifted hand is properly described by either term in 
an indictment for perjury. 1 Ind. 184 


OATH AGAINST BRIBERY. One 
which could have have administered to a 
voter at an election for members of parlia- 
ment. Abolished in 1854. Wharton. 


OATH DECISORY. In the civil law. 
An oath which one of the parties defers or 
refers back to the other for the decision of 
the cause. 


OATH EX OFFICIO. The oath by 
which a clergyman charged with a criminal 
offense was formerly allowed to swear him- 
self to be innocent; also the oath by which 
the compurgators swore that they believed in 
his innocence. 3 Bl. Comm. 101, 447; Moz- 
ley & Whitley. 


OATH EN LITEM. In the civil law. 
An oath permitted to be taken by the plain- 
tiff, for the purpose of proving the value of 
the subject-matter in controversy, when 
there was no other evidence on that point, 
or when the defendant fraudulently sup- 
pressed evidence which might have been 
available. 


OATH OF CALUMNY. In the civil 
law. Anoath which a plaintiff was obliged 
to take that he was not prompted by malice 
or trickery in commencing his action, but 
that he had bona fide a good cause of action, 
Poth. Pand. lib. 5, tt. 16, 17, s. 124. 


OATH PURGATORY. An oath by 
which a person purges or ciears himself from 
presumptions, charges, or suspicious stand- 
ing against him, or from a contempt. 


OATH-RITE. The 
taking of an cath. 


OATH SUPPLETORY. Intheciviland 
ecclesiastical law. The testimony of asingle 
witness to a fact is called “half-proof,” on 
which nosentence can be founded; in order to 
supply the other half of pruof, the party him- 


form used at the 


_ self (plaintiff or defendant) is admitted to be 


examined in his own behalf, and the oath ad- 
Ininistered to him for that purpose is called 
the “suppletory oath,” because il supplies 


OB 


N the necessary geantum of proof on which to 


8 Bl. Comm. 370. 


OB. On account of; for. Several Latin 
phrases and maxims, commencing with this 
word, are more commonly introduced by 
“in” (q. 0.) 


OB CAUSAM ALIQUAM A RE 
MARITIMA ORTAM, For some cause 
arising out of a maritime matter. 1 Pet. 
Adm. 92. Said to be Selden’s translation of 
the French definition of admiralty jurisdic- 
tion, “pour le fait dela mer.” Id. 


OB CONTINENTIAM DELICTI. 
On account of contiguity to the offense, z. ¢., 
being contaminated by conjunction with 
something illegal. For example, the cargo 
of a vessel, though not contraband or unlaw- 
ful, may be condemned in admiralty, along 
with the vessel, when the vessel has been en- 
gaged in some service which renders her lia- 
bic to seizure and confiseation. The cargo 
is then said to be condemned ob continentiam 
delicti, because found in company with an 
unlawful service. See 1 Kent, Comm. 152. 


OB CONTINGENTIAM. On account 
_ of connection; by reason of similarity. In 
Scotch law, this phrase expresses a ground 
for the consolidation of actions. 


OB FAVOREM MERCATORUM. In 
favor of merchants. Fleta, lib. 2, ¢ 63, 
§ 12. 


Ob infamiam non solet juxta legem 
terre aliquis per legoem apparentem se 
purgare, nisi prius convictus fuerit vel 
confessus in curia. Glan. lib. 14, ¢. ii. 
On account of evil report, it is not usual, ac- 
cording to the law of the land, for any per- 
son to purge himself, unless he have been 
previously convicted, or confessed in court. 


OB TURPEM CAUSAM. For an im- 
moral consideration. Dig. 12, 6. 


OBARATUS. [nRomanlaw. A debtor 
who was obliged to serve his creditor till his 
debt was discharged. Adams, liom. Ant. 49. 


found the sentenee. 


OBEDIENCE. Compliance with a corm- 
mand, prohibition, or known law and rule of 
duty prescribed; the performance of what is 
required or enjoined by authority, or tle ab 
staining from what is prohibited, in compli- 
ance with the command or prohibition. 
Webster. 


OBEDIENTIA. An office, or the admin- 
istration of it; a Kind of rent; submission; 
obedience. 


838 


a ee. 


OLJURGATRICES 


Obedientia est legis essentia. 11 Coke, 
100. Obedience is the essence of law. 


OBEDIENTIARIUS. 
cer. Du Cange. 


OBIIT SINE PROLE. Lat. [He] died 
without issue. Yearb. M.1 Edw. II. 1. 


OBIT. In old English law. <A funeral 
solemnity, or oflice for the dead. Cowell. 
The anniversary of a person's death; the an- 
niversary office. Cro. Jac. 51. 


A monastic offi. 


OBITER. Sat. By the way; in passing; 
incidentally; collaterally. 
OBITER DICTUM. Lat. A remark 


made, or opinion expressed, by a judge, in his 
decision upon a cause, “by the way,” that is, 
incidentally or collaterally, and not directly 
upon the question before him, or upon a point 
not necessarily involved in the determination 
of the cause, or introduced by way of illustra- 
tion, or analogy or aygument. 


OBJECT, ». In legal proceedings, to ob- 
ject (e. g., to the admission of evidence) is to 
interpose a declaration to the effect that the 
particular matter or thing under considera- 
tion is not done or admitted with the consent 
of the party objecting, but is by him consid- 
ered improper or illegal, and referring the 
question of its propriety or legality to the 
court. 


OBJECT, n. This term “ineludes what- 
ever is presented to the mind, as weil as whut 
may be presented to the senses; whatever, 
also, is acted upon, or operated upon, affirm- 
atively, or intentionally influenced by any- 
thing done, moved, or applied thereto.” 
Woodruaff, J., 8 Blatehf. 257. 


OBJECTION. The act of a party whe 
objects to some matter or proceeding in the 
course of a trial, (see OBJECT, v.;) or an argu- 
ment or reason urged by him in support of 
his contention that the matter or proceeding 
objected to is improper or illegal. 


OBJECTS OF A POWER. Where prop- 
erty is settled subject to a power given to any 
person or persons to appoint the same among 
a limited class, the members of the class are 
ealled the “objects” of the power. Thus, if 
a parent has a power to appoint a fund among 
his children, the children are called the “ob- 
jects” of the power. Mozley & Whitley. 


OBJURGATRICHS. In old English law. 
Scolds or unquiet women, punished with the 
cucking-stool, 


OBLATA 


OBLATA, Gifts or offerings madetothe 
king by any of his subjects: old debts, 
brought, as it were, together from preceding 
years, and put on the present sheriff’s charge. 
Wharton. 


CBLATA TERRA. Half an acre, or, 
as 30me say, half a perch, of land. Spelman. 


OBLATI. Inold Europeanlaw. Volun- 
tary slaves of churches or monasteries. 


OBLATI ACTIO. Inthecivillaw. An 
action given toa party against another who 
had offered to him a stolen thing, which was 
found in his possession. Inst. 3, 1, 4. 


OBLATIO. Inthecivil law. A tender 
of money in payment of a debt made by 
debtor to creditor. Whatever is offered to 
the church by the pious. Calvin. 


Oblationes dicuntur queecungue a piis 
fidelibusque Christianis offeruntur Deo 
et occlesice, sive res solids sive mobiles. 
2 Inst. 389. Those things are called “obla- 
tions” which are offered to God and to the 
ehurch by pions and faithful Christians, 
whether they are movable or immovable. 


OBLATIONS, or obventions, are offerings 
or customary payments made, in England, to 
the minister of a church, including fees on 
marriages, burials, mortuaries, etc., (q. v.,) 
and Easter offerings. 2 Steph. Comm. 740; 
Phillim, Ece. Law, 1596. They may be com- 
muted by agreement. 


OBLIGATE. To bind or constrain; to 
bind to the observance or performance of a du- 
ty; to place under an obligation. To bind one’s 
self by an obligation or promise; to assume 
a duty; to execute a written promise or cov- 
enant; to make a writing obligatory. 


OBLIGATIO. Lat. In Roman law. 
The legal relation existing between two cer- 
tain persons whereby one (the creditor) is 
authorized to demand of the other (the debtor) 
a certain performance which has a money 
value. In this sense obligatio signifies not 
only the duty of the debtor, but also the right 
of the creditor. The fact establishing such 
claim and debt, as also the instrument evi- 
dencing it, istermed “obligation.” Mackeld. 
Rom. Law, § 360. 

That legal relation subsisting between 
two persons by which one is bound to the 
other for a certain performance. The passive 
relation sustained by the debtor to the cred- 
{tor is likewise called an “obligation.” 


839 


Se 
SS SSS —— 


OBLIGATIO 


Sometimes, also, the term “obligatto” is used 
for the causa obligationis, and the contract 
itself is designated an “obligation.” There 
are passages in which even the document 
which affords the proof of a contract is called 
an “obligation.” Such applications, how- 
ever, are but a loose extension of the term, 
which, according to its true idea, is only prop- 
erly employed when itis used to denote the 
debt relationship, in its totality, active and 
passive, subsisting between the creditor and 
the debtor. Tomk. & J. Mod. Rom. Law, 
301. 

Obligations, in the civil law, are of the 
several descriptions enumerated below. 


Ohligatio civilis is an obligation enforceable 
by action, whether it derives ita origin from fus 
civile, as the obligation engendered by formal com 
tracts or the obligation enforceable by bilaterally 
penal suits, or from such portion of the pus genttwm 
as had been completely naturalized in the civillaw 
and protected by all its remedies, such as the ob- 
ligation engendered by formless contracta. 

Obligatio naturalis 1s an obligation not immedi- 
ately enforceable by action, or an obligation im- 
posed by that portion of the jus gentium which is 
only imperfectly recognized by civil law. 

Obligatio ex contractu, an obligation arising 
from contract, or an antecedent jus in personam. 
In this there are two stages,—first, a primary or 
sanctioned personal right antecedent to wrong, 
and, afterwards, a secondary or sanctioning per- 
sonal right consequent on a wrong. Poste's Gaius’ 
Inst, 359. 

Obligatio ex delicto, an obligation founded on 
wrong or tort, or arising from the invasion of a 
jus in rem. In this there is the second stage, a 
secondary or sanctioning personal right conse- 
quent on a wrong, but the first stage is not a per- 
sonal right, (jus in personam,) but a real right, 
(jus in rem,) whether a primordial right, right of 
status, or of property. Poste’s Gaius’ Inst. 359. 

Oligatlones ex delicto are obligations arising 
from the commission of a wrongful injury to the 
person or property of another. “ Delictuwm” is not 
exactly synonymous with “tort,” for, while it in- 
cludes most of the wrongs known to the common 
law as torts, it is also wide enough to cover soma 
offenses (such as theft and robbery) primarily in- 
jurious to the individual, but now only punished 
as crimes. Such acts gave rise to an obligatio, 
which consisted in the liability to pay damages. 

Obligationes quasi ex contractu. Often persons 
who bave not contracted with each other, undera 
certain state of facts, are regarded by the Roman 
law as if they had actually concluded a convention 
between themselves. The legal relation which 
then takes place between these persons, which has 
always a Similarity to a contract obligation, is 
therefore termed “obligatio quasi ex contractu. ® 
Such a relation arises from the conducting of af- 
fairs without authority, (negotiorum gestio;) from 
the management of property that is in common 
when the community arose from casualty, (com 
munis incidens;) from the payment of what was 
not dué, (solutio indebiti;) from tutorship and 
curatorship; and from taking possession of an in 
heritance. Mackeld. Kom. Law, § 49L 


OBLIGATIO 


Obligationes quast ex delicto. This class em- 
braces all torts not coming under the denomination 
of “delicta,” and not having a special form of ac- 
tion provided for them by law. They differed 
widely in character, aud at common law would in 
some cases give rise to an action on the case; in 
others to an action on an implied contract. Ort. 
Inst. §§ 1781-1792. 

OBLIGATION. Anobligation isa legal 
duty, by which a person is bound to do or 
not to doacertain thing. Civil Code Cal. 
§ 1427; Civil Code Dak. § 798. 

The binding power of a vow, promise, oath, 
or contract, or of law, civil, political, or moral, 
independent of a promise; that which con- 
stitutes legal or moral duty, and which ren- 
ders a person liable to coercion and punish- 
ment for neglecting it. Webster. 

“Obligation” is the correlative of “right.” 
Taking the latter word in its politico-ethical 
sense, as a power of free action lodged ina 
person, “obligation” is the corresponding 
duty, constraint, or binding force which 
should prevent all other persons from deny- 
ing, abridging, or obstructing such right, or 
interfering with its exercise. And the same 
{fs its meaning as the correlative of a “jus in 
rem.” Taking “right” as meaning a “jus 
in personam,” (a power, demand, claim, or 
privilege inherent in one person, and inci- 
dent upon another,) the “obligation” is the 
coercive force or control imposed upon the 
person of incidence by the moral law and the 
positive law, (or the moral law as recognized 
and sanctioned by the positive law,) con- 
straining him to accede to the demand, ren- 
der up the thing claimed, pay the money 
due, or otherwise perform what is expected 
of him with respect to the subject-matter of 
the right. 

In a limited and arbitrary sense, it means 
a penal bond or “writing obligatory,” that 
is,a bond containing a penalty, with a con- 
dition annexed for the payment of money or 
performance of coyenants. Co, Litt. 172. 

Obligation is (1) legal or moral duty, as opposed 
to physical compulsion; (2) a duty incumbent up- 
on an individual, or a specific aud limited number 
of individuals, as opposed to a duty imposed upon 
the world at large; (3) the right to enforce sucha 
duty, (jus in personam,) as opposed to such a 
right as that of property, (jus i rem,) which 
avails against the world at large; (4) a bond con- 
tuining a penalty, with a condition annexed, for 
the payment of money, performance of covenants, 
or the like. Mozley & Whitley. 

In English expositions of the Roman law, 
and works upon general jurisprudence, “ob- 
ligation” is used to translate the Latin “ob- 
ligatio.” In this sense its meaning is much 
wider than as a techmical term of Hnglish 
law. Seo OBLIGATIO, 


840 


OBLIGATION 


Classification. The various sorts of obli- 
gations may be classified aid defined as fol- 
lows: 

They are either perfect or tmpenfect. A 
perfect obligation is one recognized and 
sanctioned by positivelaw; one of which the 
fulfillment can be enforced by the aid of the 
law. But if the duty created by the obliga- 
tion operates only on the moral sense, with- 
out being enforced by any positive law, it is 
called an “imperfect obligation,” and creates 
no rigtit of action, nor has it any legal op- 
eration. The duty of exercising gratitude, 
charity, aud the other merely moral duties ia 


an exampieof this kind of obligation. Civil 
Code La. art. 1757. 
They are either natural or civil, A nat- 


ural obligation is one which cannot be en- 
forced by action, but which is binding on the 
party who makes it in conscience and accord: 
ing to natural justice. A civil obligation is 
a legal tie, which gives the party with whom 
it is contracted the right of enforcing its 
performance by law. Civil Code La. art. 
1757. 

They are either express or implied; the 
former being those by which the obligor binds 
himself in express terms to perform his ob- 
ligation; while the latter are such as are 
raised by the implication or inference of the 
law from the nature of the transaction. 

They are determinate or indeterminate; 
the former being the case where the thing 
contracted to be delivered is specified as an 
individual; the latter, where it may be any 
one of a particular class or species. 

They are divisible or indivisible, according 
as the obligation may ov may nut be lawfully 
broken into several distinct obligations with- 
out the consent of the obligor. 

They are joint or several; the former, 
where there are two or more obligors binding 
themselves jointly for the performance of the 
obligation; the iatter, where the obligors 
promise, each for himself, to fulfill the en- 
gagement. 

They are personal or real; the former be- 
ing the case when the obligor himself is per- 
sonally liable for the performance of the en- 
gagement, but does not directly bind his prop- 
erty; the latter, where real estate, not the 
person of the obligor, is primarily liable for 
performance. 

They are heritable or personal. The for- 
mer is the ease when the heirs and assigns of 
one party may enlorce the perfurmance 
against the heirs of the other; the latter, 
when the obligor binds himself only, not his 
heirs or representatives, 


OBLIGATION 


They are either principal or accessory. A 
principal obligation is one which is the most 
important object of the engagement of the 
contracting parties; while an accessory obli- 
gation depends upon or is collateral to the 
principal. 

They may be either conjunetive or aiterna- 
five. ‘The former is one in which tlie sever- 
al objects in it are connected by a copulative, 
or in any other manner which shows that all 
of them are severally comprised in the con- 
tract. ‘This contract creates as many differ- 
ent obligations as there are different objects; 
und tle debtor, when hse wishes to discharge 
himself, may force the creditor to receive 
them separately, But where the things 
which form the object of the contract are 
separated by a disjunctive, then the obliga. 
tion is aiternative. A promise to deliver a 
certain thing or to pay a specified sum of 
money is an example of this kind of obliga- 
tion. Civil Code La. art. 2063. 

They are either simple or conditional. 
Simple obligations are such as are not de 
pendent for their execution on any event pro- 
vided for by the parties, and which are net 
agreed to become void on the happening of 
any such evant. Conditional obligations are 
such as are made to depend on an uncertain 
event. If the obligation is not to take effect 
until the event happens, it is a suspensive 
condition; if the obligation takes effect im- 
mediately, but is liable to be defeated when 
the event happens, it is then aresolutory con- 
dition. Civil Code La. arta. 2020, 2021, 

They may be either single or penal; the 
latter, when a penal clause is attached to the 
undertaking, to be enforced in case the obli- 
gor fails to perform; the former, when no 
such penaity is added. 


OBLIGATION OF A CONTRACT. 
As used in Const. J. S, art. 1, § 10, the 
term means the binding and coercive force 


which constrains every man te perform the | 


agreemeuts he has made; a force grounded 
in the ethic:i principle of fidelity to one’s 
promises. but deriving its legal efficacy from 
its recognition by positive law, and sanctioned 
by the law's providing a remedy for the in- 
fraction cf the duty or for the enfcrcement 
of the correlative right. See Story, Const. 
§ 1878; Black, Const. Prohib. § 133. 

Tho obligetion of a contract is that which 
obliges a part) to perform his contract, or re- 
pair the injury done by a failure to perform. 
4 Gilman, 277. 

OBLIGATION SCLIDATIRE. This, in 
French law, corresponds to joint and several 


84h 


OBROGATION 


liability in English law, but is applied also 
to the joint and several rights of the credit- 
ors parties to the obligation. 


OBLIGATORY. Thoterm “writing ob- 
ligatory” is a technica! term of the law, and 
means a written contract under seal. 7 Yerg. 
300. 


OBLIGEE. The person in favor of 
whom some obligation is contracted, wheth- 
er such obligation be to pay money or to da 
or not to do something. Code La. art. 3522, 
ne. 11. The party to whom a bond is given. 


OBLIGOR. The person who has engaged 
to perform some obligation. Code La. art. 
3522, no. 12. One who makes a bond. 


OBLIQUUS. Lat. Inthe old law of 
descents. Oblique; cross; transverse; col- 
lateral. The opposite of rectus, right, or up- 
riglit. 

In the law of evidence. 
cumstantial. 


Indirect; cir- 


OBLITERATION, 
out of written words. 

Obliteration is not limited to effacing the 
letters of a will or seralching them out or 
blotting the:n so completely that they cannot 
be read. A line drawn through the writing 
is obliteration, though it may leave it as leg- 
ible as it was before. 58 Pa, St. 244. 


OBLOQUY. Tosxpose one to “obloquy” 
is to expose him to censure and reproach, as 
the latter terms are synonymous with “oblo- 
quy.” 70 Cal. 275, 11 Pac. Rep. 716. 


OBRA. InSpanishlaw. Work. Obras, 
works or trades; those which men carry on 
in houses or covered places. White, New 
Recop. b. 1, tit. 5, ¢. 3, § 6. 


Erasure or biotting 


OBREPTIO. Lat. 
thing by fraud or surprise. 
in Scoteh law, “obreption.” 


The obtaining a 
Calvin. Called, 


OBREPTION, Obtaining anything by 
fraud or surprise. Acquisition of esclieats, 
elc., from the sovereign, by making false rep- 
tesentations. Beli. 


OBROGARE. Lat. In the civil law. 
To pass a law contrary to a former law, or 
to some clause of it; to change a former law 
in some part of it. Calvin. 


OBROGATION. In the civillaw. The 
alteration of a law by the passage of one in- 
consistent with it. Calvin. 


N 


OBSCENE 


OBSCENE. lewd; impure; indecent: 
ealenlated to shock the moral sense of man 
by a disregard of chastity or modesty. 


OBSCENITY. The character or quality 
of being obscene; conduct tending to corrupt 


842 


the public morals by its indecency or lewd- | 


ness. . 


OBSERVE. In thecivillaw. To perform 
that which has been prescribed by some law 
or usage. Dig. 1, 3, 32. 


OBSES. In the law of war. 
Obsides, hostages. 


OBSIGNARE. In the civil law. To 
seal up; as money that had been tendered and 
refuse, 


OBSIGNATORY. Ratifying and con- 
firming. 


OBSOLESCENT. Becoming obsolete; 
going ont of use; not entirely disused, but 
gradually becoming so. 


OBSOLETE. Disused; neglected; not 
observed. The term is applied to statutes 
which have become inoperative by lapse of 
time, either because the reason for their en- 
actment has passed away, or their subject- 
mutter no longer exists, or they are not ap- 
plicable to changed circumstances, or are 
tacitly disregarded by all men, yet without 
being expressly abrogated or repealed. 


OBSTA PRINCIPIIS. Lat. With- 
stand beginnings; resist the first approaches 
or encroachments. “It is the duty of courts 
to be watchful for the constitutional rights 
of the citizen, and against any stealthy en- 
eroachments thereon. Their motto should be 
‘Obsta principtis.’” Bradley, J., 116 U.8. 
635, 6 Sup. Ct, Rep. 535. 


OBSTANTE. Withstanding; hindering. 
See Non OBSTANTE. 


OBSTRICTION. 


OBSTRUCT. 1. To block up; to inter- 
pose obstacles; to render impassable; to fill 
with barriers or impediments; as to obstruct 
a road or way. 

2. To impede or hinder; to interpose ob- 
stacles or impediments, to the hindrance or 


Obligation; bond. 


A hostage, | 


frustration of some act or service; as to ob | 


struct an officer in the execution of his duty. 


OBSTRUCTING PROCESS. In crim- 
inal law. The act by which one or more 
persons attempt to prevent or do prevent the 
execution of lawful process, 


OCCUPANCY 


OBSTRUCTION. ‘This is the word 
properly descriptive of an injury to any one’s 
incorporeal hereditament, e. g., his right to 
an easement, or profit a prendres an alter- 
native word being “disturbance.” On the 
Other hand, “infringement.” is the word 
properly descriptive of an injury to any one’s 
patent-rights or to his copyright. But “ob- 
struction” is also a very genera] word in law, 
being applicable to every hindrance of a 
man in the discharge of his duty, (whether 
official, public, or private.) Brown. 


Obtemperandum est consuetudini ra- 
tionabili tanquam legi. 4 Coke, 38. A 
Teasonable custom is to be obeyed as a law. 


OBTEMPERARE. Lat. To obey. 
Hence the Scoteh “obtemper,” to obey or 
comply with a judgment of a court. 


OBTEST, ‘To protest. 


OBTORTO COLLO. In Roman law. 
Taking by the neck or collar; as a plaintiff 
was allowed to drag a reluctant defendant to 
court. Adams, Rom. Ant. 242, 


OBTULIT SE. (Offered himself.) In 
old practice, The emphatic words of entry 
on the record where one party offered him 
self in court against the other, and the lat- 
ter did not appear. 1 Reeve, Eng. Law, 417. 


OBVENTIO. Lat. In the civil law. 
Rent; profits; income; the return from an 
investment or thing owned; as the earnings 
of a vessel, 

In old English law. 
spiritual living, so called. 
ral, “offerings.” 


OCASION. In Spanish law. Accident, 
Las Partidas, pt. 3, tit. 62, 1, 21; White, 
New Recop. b. 2, tit. 9, c. 2. 


OCCASIO. A tribute which the lord 
imposed on his vassals or tenants for his ne- 
cessity. Hindrance; trouble; vexation by 
suit. 

OCCASIONARI. Tobecharged or lond- 
ed with payments or occasional penalties. 


OCCASIONES. 
Assarts. Spelman. 


The revenue of a 
Also, in the plu- 


In old English law. 


Occultatio thesauri inventi fraudu- 
losa. 3 Inst. 183. The concealment of dis- 
covered treasure is fraudulent. 


OCCUPANCY. Occupancy is a mode of 
acquiring property by which a thing which 
belongs to nobody becomes the property of 
the person who took possession of it, with 


OCCUPANCY 


the intention of acquiring a right of owner- 
ship in it. Civil Code La. art. 3412. 

The taking possession of things which be- 
fore belonged to nobody, with an intention 
of appropriating them to one’s own use. 

“Possession” and “occupancy,” when applied to 
lend, are nearly synonymous terms, aud may exist 
through a tenancy. Thus, occupancy of a home- 
stead, such as will satisfy the statute, may be by 
means other than that of actual resideuce on the 
premises by the widow or child. 21 Ili 178. 

There is a use of the word in public-land laws, 
homestead laws, “occupying-claimant "laws, cases 
of landlord and tenant, and like connections, which 
seems to require the broader sense of possession, 
although thera is, in most of thesa uses, a shade 
of meaning discarding any prior title as a founda- 
tion of right, Perhaps both uses or views may be 
harmonized, by saying that in jurisprudence oc- 
euparcy or occupation is possession, presented in- 
dependent of the idea of a chain of title, of any 
earlier owner. Or “occupancy” and “occupant” 
might be used for assuming property which has 
no owner, and “occupation” and “occupier” for 
the moro general idea of possession. Judge Bou- 
vier's definitions seem partly founded on such a 
distinction, and there are indications of it in En- 
glish usage. It does uot appear generally drawn 
in American books. Abbott. 


In international law. The taking pos- 
session of a newly discovered or conquered 
country with the intention of holding and 
ruling it. 


OCCUPANT. Ina general sonse. One 
who takes possession of a thing, of which 
there ig no owner; one who has the actual 
possession or control of a thing. 


In a special sense. 
session of lands held pur autre vie, after the 
death of the tenant, and during the life of the 
cestut que vie. 


Oeccupantis flunt derelicta. Things 
abandoned become the property of the (first) 
occupant. 1 Pet. Adm, 53. 


OCCUPARE. Inthecivillaw. To acize 
or take possession of; to enter upon a vacant 
possession; to take possession before another. 
Calvin. 


OCCUPATILE. That which has been 
left by the right owner, and is now possessed 
by another. 


OCCUPATION. 
tenure; use, 


In its usual sense “occupation” is where a per- 
g0n exercises physical control over land. Thus, 
the lessee of a house is in occupation of it so long 
as he hasthe power of entering into and staying 
there at pleasure, and of excluding all other per- 
gons (or ali except one or more specified persons} 
from the use of it. Occupation is therefore the 
same thing as actual possession. Sweet 


Possession; control; 


One who takes pose. 


843 


ODHAL 


The word “occupation, “applied to real property, - 
is, ordinarily, equivalent to possession.” In con- 
nection with other expressions, it may mean that 
the party should be living upon the premises; but, 
standing alons, it is satisfied by actual possession, 
19 Cal. 688; 11 Abb. Pr. 97; 1 EL & El. 538. 

A trade; employment; profession; buai- 
ness; means of livelihood. 


OCCUPATIVE., 
ployed, 


OCCUPAVIT. Lat. In old English law. 
A writ that lay for one who was ejected out of 
his land or tenement in time of war. Cow- 
ell. 


OCCUPIER. An occupant; one who is 
in the enjoyment of a thing. 


Possessed; tised; em- 


OCCUPY. To hold in possession; to 
hold or keep for use. 107 U.S. 843, 2 Sup. 
Ct. Rep. 677; 11 Johns, 214. 


OCHIERN. In old Scotch 
name of dignity; a freeholder. 
Verb, Sign. 


OCHELOCRACY. Government by the 
multitude. A form of goyernment wherein 
the populace has the whole power and ad- 
ministration in its own hands. 


OCTAVE. In old English law. The 
eighth day inclusive after a feast; one of the 
return days of writs. 3 Bl. Comm. 278, 


law. A 
Skene de 


OCTO TALES. Eight such; eight such 
men; eight such jurors. The name of a 
writ, ab common law, which issues when 
upon a trial at bar, efgAt more jurors are 
necessary to fill the panel, commanding the 
sheriff to sttmmon the requisite number. 
8 Bl. Comm. 364, See Decem Taxes. 


OCcTROI. Fr, In old French law. 
Originally, a duty, which, by the permission 
of the scigneur, any city was accustomed to 
collect on liquors and some other goods, 
brought within its precincts, for the con- 
sumption of the inhabitants, Afterwards 
appropriated to the use of the king. Steph. 
Lect. p. 361. 


Oderunt peccars boni, virtutis amore; 
oderunt peccare mali, formidine pwn. 
Good men hate sin through love of virtue; 
bad men, through fear of punishment. 


ODHAL. Complete property, as opposed 
to feudal tenure. The transposition of the 
syllables of “odhai” makes it “allodhk,” and 
hence, according to Blackstone, arises the 
word “alled” or “allodial,” (gq. 0.) “ All- 


ODIO ET ATIA 


N -odA” is thus put In contradistinction to “fee- 
odkh.” Mozley & Whitley. 


ODIO ET ATIA. A writ anciently 
called “breve de bono ef malo,” addressed to 
the sheriff to inquire whether a man com- 
mitted to prison upon suspicion of murder 
were committed on just cause of suspicion, 
or only upon malice and ill will; and if, 
upon the inquisition, it were found that he 
was not guilty, then there issued another 
writ to the sheriff to bail him. Reg. Orig. 
133, 


Odiosa et inhonesta non sunt in lege 
presumanda. Odious and dishonest acts 
are not presumed in law. Co. Litt. 78; 6 
Wend. 228, 231; 18 N. Y. 295, 300. 


Odiosa non presumuntur. Odious 
things are not presumed. Burrows, Sett. 
Cas. 190. 


GECONOMICUS. L. Lat. In old En- 
gligh law. The executor of a last will and 
testament. Cowell. 


CGECONOMUS. Lat. In the civil law. 
A manager or administrator. Calvin. 


OF COUNSEL, A phrase commonly 
applied in practice to the counsel employed 
by a party in a cause. 


OF COURSE. Any action or step taken 
in the course of judicial proceedings which 
will be allowed by the court upon mere ap- 
plication, without any inquiry or contest, or 
which may be effectually taken without even 
applying to the court for leave, is said to be 
“of course.” 


OF FORCE. In force; extant; not ob- 
solete; existing as a binding or obligatory 
power. 


OF NEW. A Scotch expression, closely 
translated from the Latin “de novo,” (g¢. v.) 


OF RECORD. Recorded; entered on 
the records; existing and remaining in or 
upon the appropriate records. 


OFFA EXECRATA. 
jaw. 
(q. 2) 


OFFENSE. A crimeor misdemeanor; a 
breaeh of the criminal laws. 

It is used as a genus, comprehending every 
crime and misdemeanor, or as a species, sig- 
nifying a crime not indictable, but punisha- 
ble summarily or by the forfeiture of a pen- 
ulty. 


In old English 
The morsel of execration; the corsned, 
1 Reeve, Eng. Law, 21. 


844 


OFFICE-COPY 


OFFER. A proposal to doa thing. A 


proposal to make a contract. Also an at- 
temps. 
| OFFERINGS. In English ecelesiastical 


law. Personal tithes, payable by custom to 
the parson or vicar of a parish, either occa- 
sionally, as at sacraments, marriages, chureh- 
ing of women, burials, ete., or at constant 
times, as at Kaster, Christmas, etc. 


OFFERTORIUM. In English ecciesias- 
ticallaw. The offerings of tle faithful, or the 
place where they are made or kept; the serv- 
ice at the time of the Communion. 


OFFICE. “Office” is defined to bea right 
to exercise a public or private employment, 
and to take the fees and emoluments there- 
unlo belonging, Whether public, as those of 
mnagistrates, or private, as of bailiffs, receiv- 
ers, or the like. 2 BI. Comm. 36. 

That function by virtue whereof a person 
has some employment in the affairs of an- 
other, whether judicial, ministerial, legisla- 
tive, municipal, ecclesiastical, etc, Cowell. 

An employment on behalf of the govern- 
ment in any station or public trust, not 
merely trausient, occasional, or incidental. 
20 Jolns. 493. 


The most frequent occasions to use the word 
arise with reference to a dutyand power conferred 
on an individual by the government; and, when 
this is the connection, “public office” is a usual 
and more discriminating expression, Buta power 
and duty may exist without immediate grant from 
government, and may be properly called an “of- 
fice;” as the oflice of exccutor, the office of staw- 
ard, Here the individual acts towards legatees or 
towards tenants in psrformance of a duty, and in 
exercise of a power not derived from their con- 
sent, but devolved on him by an authority which 
quoad hoc is superior. Abbott. 

Offices may be classed asciviland military; and 
civil offices may be vlassed as political, judicial, 
aud ministerial. Political offices are such as are 
not connected immediately with the administra- 
tion of justice, or the execution of the mandates 
of a superior officer. Judicial are those which re- 
late to the administration of justice. Ministerial 
are those which give the officer no power to judge 
of the matter to be done, and require him to obey 
the mandates of a superior. It is a general rule 
that a judicial office cannot be exercised by dep- 
uty, while a ministerial one may. 12 Ind. 569. 


“Office” is trequently used in the old 
books as an abbreviation for “inquest of of- 
fice,” (g. &.) 

OFFICE-BOOK. Any book for the ree- 
ord of official or other transactions, kept une 
der authority of the state, in public offices 
not connected with the courts. ; 


OFFICEH-COPY. <A copy or transcript 
| of a decd or record or any filed document 


$$$ ——$ $$$ __—— a 


—— ———— ——S 


OFFICE FOUND 


made by the officer having it in eustedy or 
under his sanction, and by him sealed or cer- 
tified. 


OFFICE FOUND. In English law. 
Inquest of office found; the finding of certain 
facts by a jury on an inquest or inquisition 
of office. 3 Bl. Comm. 258, 259. This 
phrase has been adopted in American law. 
2 Kent, Comm. 61. 


OFFICE GRANT. A designation of a 
conveyance made by some officer of the law 
to effect certain purposes, where the owner 
is either unwilling or unable to execute the 
requisite deeds to pass the title; such, for ex- 
ample, as a tax-deed. 3 Washb. Real Prop. 
*537 


OFFICE HOURS. That portion of the 
day during which pubdhie offices are usually 
open for the transaction of business. 


OFTICE OF JUDGE. A criminal suit | 
in an ecclesiastical court, not being directed | 


to the reparation of a private injury, is re- 
garded as a proceeding emanatiny from the 
oftice of the judge, and may be instituted by 
the mere motion of the judge. But, in prac- 
tice, these suits are instituted by private in- 
dividuals, with the permission of the judge 
or his surrogate; and the private prosecutor 
in any such case is, accordingly, said to 
“promote the ollice of the judge.” Mozley 
& Whitley. 


OFFICER. The incumbent of an office; 
one whois lawfully invested with an office. 
One who is charged by a superior power (and 
particularly by government) with the power 
and duty of exercising certain functions. 


OFFICER DE FACTO. As distin- 
guished from an officer de jure, this is the 
designation of one who is in the actual pos- 
session and administration of the office, un- 
der some coloruble or apparent authority, 
although his title to the same, whether by 
election or appointment, is in reality invalid 
or at least formally questioned. 


Au ofiicer de factu is one who exercises the du- 
ties of an office under color of right, by virtue of 
un appointment or election to that oflice; being 
distinguished, on the one band, froma mere usurp- 
er of an office, and, on the other, from an officer de 
jure. 17 Conn. 585; 3 Bush, 14; 387 Me. 423; 43 Id. 
79; 55 Pa. St. 468; 7 Jones, (N.C.) 107, 

The true doctrine seems to be that itis sufficient 
ifthe officer holds the ofiice under some power 
having color of authority to appoint; and thata 
statute, though itshould be found repugnant to 
the constitution, will give suchcolor. 21 Ohio St 
613. 

Aun officer de acto is one whose acts, though he 


545 


| 


OFFICIAL LIQUIDATOR 


was not a lawful oficer, the law, upon principle 
of policy and justice, will hold valid so far as they 
involye the public and third persons. 38 Conn 
449. 

A de facto officer is one who goes in under color 
of authority, or who exercises the duties of the 
office so long or under such circumstances as tc 
raise a presumption of hisright. 73 N. C. 546. 


OFFICERS OF JUSTICE. A general 
name applicable to ail persons connected with 
the administration of the judicial department 
of government, but commonly used only ot 


| the class of officers whose duty is to serve 


the process of the courts, such as sheriffs, 
constables, bailiffs, marshala, sequestrators, 
et: 


Officia judicialia non concedantur an- 
tequam vacent. I1 Coke, 4. Judicial of- 
fices should not be granted before they are 
vacant. 


Officia magistratus non debont esse 
venalia. Co. Litt. 234. The offices of mag- 
istrates ought not to be sold. 


OFFICIAL, adj. Pertaining to an office; 
invested with the character of an officer; pro- 
ceeding from, sanctioned by, or done by, an 
officer. 


OFFICIAL, n. An officer; a person In- 
vested with the authority of an oilice. 

In the civil law. The minister or appar- 
itor of a magistrate or judve, 

In canon law. A person to whom a 
bishop commits the charge of his spiritual! 
jurisdiction. 

In common and statute law. The per- 
son whom the archdeacon substitutes in the 
execution of his jurisdiction, Cowell. 


OFFICIAL ASSIGNEE. In English 
practice. An assignee in bankruptcy ap- 
pointed by the lord chancellor to co-operate 
with the other assignees in administering a 
bankrupt’s estate. 


OFFICIAL BOND. A bond given by a 
public officer, conditioned that he shall well 
and faithfully perform all the duties of the 
oflice. The term is sometimes made to in- 
clude the bonds of executors, guardians, trus- 
tees, etc. 


OFFICIAL LIQUIDATOR. In En- 
glish law. A person appointed by the judge 
in chancery, in whose courta joint-stock com- 
pany is being wound up, to bring and defend 
suits and actions in the name of ihe com- 
pany, and generally to do all things neces- 
sary for winding up the affairs of the com 


OFFICIAL LOG-BOOK 


N pany, and distributing its assets. 3 Steph. 
Comm. 24. 


OFFICIAL LOG-BOOK. A log-book 
in a certain form, and containing certain 
specified entries required by 17 & 18 Vict. c. 
104, §§ 280-282, to be kept by all British 
merchant ships, except those exclusively en- 
gaged in the coasting trade. 


OFFICIAL MANAGERS. Persons 
formerly appointed, under English statutes 
now repealed, to superintend the winding up 
of insolvent companies under the control of 
the court of chancery. Wharton. 


OFFICIAL OATH. One taken by an 
officer when he assumes charge of his office, 
whereby he declares that he will faithfully 
discharge the duties of the same, or whatever 
else may be required by statute in the partic- 
ular case. 


OFFICIAL PRINCIPAL, An ecclesi- 
astical officer whose duty it is to hear causes 
between party and party as the delegate of 
the bishop or archbishop by whom he is ap- 
pointed. He generally also holds the office of 
vicar general and (if appointed by a bishop) 
that of chancellor. The ofticial principal of 
the province of Canterbury is called the “dean 
of arehes.” Phillim, Ece. Law, 1203, et 
5eq.; Sweet. 


OFFICIAL SOLICITOR TO THE 
COURT OF CHANCERY. An officer in 
England whose functions are to protect the 
suitors’ fund, and to administer, under the 
direction of the court, 80 much of it as now 
comes under the spending power of the court. 
He acts for persons suing or defending in 
forma pauperis, when so directed by the 
judge, and for those who, through ignorance 
or forgetfulness, have been guilty of con- 
tempt of court by not obeying process. He 
also acts generally as solicitor in all cases in 
which the chancery division requires such 
services. The office is transferred to the 
high court by the judicature acts, but no al- 
teration in its name appears to have been 
made. Sweet. 


OFFICIAL TRUSTEE OF CHARITY 
LANDS. The secretary of the English 
charity commissioners. He is a corporation 
sole for the purpose ef taking and holding 
real property and leaseholds upon trust for 
an endowed charity in cases where it appears 
to the court desirable to vest them in him. 
He is a bare trusiee, the possession and man- 


846 


OLD NATURA BREVIUM 


acting in the administration of the charity 
Sweet. 


OFFICIAL USE. An active use before 
the statute of uses, which imposed some duty 
on the legal owner or feofee to uses; asa 
conveyance to A. with directions for him to 
sell the estate and distribute the proceeds 
amoug B., C., and D. To enable A. to per- 
form this duty, he had the legal possession 
of the estate to be sold. Wharton. 


OFFICIALTY. The court or jurisdic 
tion of which an official is head. 


OFFICIARIIS NON FACIENDIS 
VEL AMOVENDIS. A writ addressed to 
the magistrates of a corporation, requiring 
them not to make such a man an officer, or 
to put one out of the office he has, until in- 


quiry is made of his manners, etc. Reg. 
Orig. 126. 
OFFICINA JUSTITIA. The _ work- 


shop or office of justice. 
formerly so calied. 


OFFICIO, EX, OATH. An oath where- 
by a person may be obliged to make any pre- 
sentment of any crime or offense, or to con- 
fess or accuse himself of any criminal matter 
or thing whereby he may be liable to any 
censure, penalty, or punishment. 3 Bl. 
Comm. 447. 


OFFICIOUS WILL. A testament by 
which a testator leaves his property to his 
family. Sandars, Just. Inst, 207. See In- 
OFFICIOUS TESTAMENT. 


The chancery was. 


Officit conatus si effectus sequatur. 
The attempt becomes of consequence, If the 
effect follows. Jenk. Cent. 55. 


Officium nemini debet esse damno- 


sum. Office ought not to be an occasion of 
loss to any one. A maxim in Scotch law. 
Bell. 


OTR. In Spanish law. To hear; to take 
cognizance. White, New Hecop. b. 3, tit. 1, 
G. ¢s 


OKER. In Scotch law. Usury; the tak- 
ing of interest for money, contrary to law. 
Bell, 


OLD NATURA BREVIUM. Thetitle 
of a treatise written in the reign of Edward 
II. containing the writs which were then 
most in use, annexing to each a short com. 
ment concerning their nature and the appli- 


| cation of tllem, with their various properties 
agement of the land remaining inthe persons | and effects. 8 Reeve, Eng. Law, 152, 


OLD NATURA BREVIUM 


847 


It is so called by way of distinction from | 


the Yew Natura Brevium of Fitzherbert, and 
is generally cited as “O. N. B.,” oras “Vet. 


Latin title. 


OLD STYLE. The anclent calendar or 
method of reckoning time, whereby the year 
commenced on March 25th. It was super- 
seded by the new style (that now in use) in 
most countries of Europe in 1582 and in 
England in 1752. 


OLD TENURES. A treatise, so called 
to distinguish it from Littleton’s book on the 
same subject, which gives an account of the 


yarious tenures by which land was helden,. 


the nature of estates, and some other inci- 
dents to landed property in the reign of Ed- 
ward III. Itis a very scanty tract, but has 
the merit of having led the way to Littleton’s 
famous work. 83 Reeve, Eng. Law, 151. 


OLEOMARGARINE. An _ artificial 
imitation of butter, made chiefly from animal 
fats. ltssale is prohibited by statute in sev- 
eral states. See 114 Pa. St. 265, 7 Atl. Rep. 
918; 127 U.S. 678, 8 Sup. Ct. Rep. 992, 1257; 
63 Md. 596; 36 Minn, 69, 30 N. W. Rep. 308; 
77 Mo. 110; 105 N. Y. 123, 11 N. E, Rep. 
277; 64 N. H. 549, 15 Atl. Rep. 210. 


OLERON, LAWS OF. A code of mar- 
itime laws published at the island of Oleron 
in the twelfth century by Eleanor of Gui- 
enue. They were adopted in England succes- 
sively under Richard I., Henry ILI., and Ed- 
ward III., and ara often cited before the ad- 
rairalty courts. 


OLIGARCHY. A form of government 
wherein the administration of affairs is 
lodged in the hands of a few persons. 


OLOGRAPH. An instrument (e g.,8 
will) wholly written by the person from whom 
it emanates, 


OLOGRAPHIC TESTAMENT, The 
olographic testament is that which is written 
by the testator himself. In order to be valid 
it must be entirely written, dated, and signed 
by the hand of the testator. It is subject to 
no other form, and may be made anywhere, 
even out of the state. Civil Code La. art. 
1588; Civil Code Cal. § 1277. 


OLYMPIAD. A Grecian epoch; the 


apace of four years, 
OME BUENO. In Spanish law. A 
good man; a substantial person. Las Par- 


tidas, pt. 5, tit, 13, 1. 38, 


OMNE TESTAMENTUM, ETC. 


Omissio eorum qua tacite insunt ni- 
hil operatur. The omission of those things 


| which are tacitly implied is of no consequence, 
Na. B.,” using the abbreviated form of the | 2 Balst. 131. 


OMISSIS OMNIBUS ALIIS NEGO- 
TIIS. Lat. Laying aside all other buati- 
nesses. 9 East, 347. 


OMYTTANCE. Forbearance; omission, 

Omne actum ab intentione agentis est 
judicandum. Every act is to be judged by 
the intention of the doer, Lranch, Princ. 


Omne crimen ebrietas et incendit et 
detegit. Drunkenness both inflames (or ag- 
gravates} and reveals every crime. Co. Litt. 
247a, 4 BL. Comm. 26; Broom, Max. 17. 


Omne jus aut consensus fecit, aut 
necessitas constituit aut firmavit con- 
suetudo. Every right is either made by 
consent, or is constituted by necessity, or is 
established by custom. Dig. 1, 3, 40. 


Omne magis dignum trahit ad se mi- 
nus dignum, quamyvis minus dignum sit 
autiquius. Every worthier thing draws to 
it the less worthy, though the less worthy be 
the more ancient. Co, Litt. 3558. 


Cmns magnum exemplum habet ali- 
quid ex iniquo, quod publica utilitate 
compensatur. Hob. 279. Every great ex- 
ample has some portion of evil, which is com- 
pensated by the public utility. 


Omne majus continet in se minus. 
Every greater contains in itself the less. 5 
Coke, llia. The greater always containg 
the less. Broom, Max. 174. 


Omnoe majus dignum continet in se 
minus dignum. Co, Litt, 43. The more 
worthy contains in itself the less worthy. 


Omnoe majus minus in se complectitur, 
Every greater embraces in itself the less. 
Jenk. Cent. 208. 


Omne principale trahit ad se accesso- 
rium. Every principal thing draws to itself 
the accessory. 17 Mass. 425; 1 Johns. 580. 


Omne quod solo inwdificatur solo 
coedit. Everything which is built upon the 
soil belongs to the soil, Dig. 47,3, 1; Broom, 
Max. 401. 


Omne sacramentum debet esse ds certa 
scientia. Every oath ought to be of certain 
knowledge. 4 Inst. 279, 


Omne testamentum morte consum- 
matum est. 8Coke,29. Every will is com 
pleted by death. 


N 


OMNES ACTIONES, ETC, 


Cmnes actiones in mundo infra certa 
tempora kabent limitationem. Allactions 
In the world ure limited within certain peri- 
ods. DBract. fol. 52. 


Omnes homines aut liberi sunt aut 
servi. All men are freemen or slaves. Inst. 
1, 3, pr.; Fleta, 1. 1,1, § 2. 


Omnes licentiam habere his quae pro 
86 indulta sunt, ronunciare, [It isarule 
of the ancient law that]all persons shall have 
liberty to renounce those privileges wiich 
have been conferred for their benefit. Cod. 
1, 8, 51; Id. 2, 3, 29; Broom, Mux. 699. 


Omnes prudentes illa admittere solent 
que probantur iis qui in arte sua 
bene versati sunt. All prudent men are 
accustomed to admit those things which are 
approved by those who are well versedin the 
art. 7 Coke, 19. 


Omnes sorores sunt quasi unus heres 
de una hereditate. Co. Litt.67. All sis- 
ters are, as it were, one heir to one inherit- 


OMNI EXCEPTIONE MAJUS, 4 Inst. 
262. Above all exception. 


Omnia delicta in aperto leviora sunt. 
Ali crimes that are committed openly are 
lighter, [or have a less odious appearance 
than those committed secrelly.] 8 Coke, 127a. 


OMNIA PERFORMAVIT. He has 
done all. In pleading. A good plea in bar 
where ail the covenants are in the affirmative. 
1 Me. 189. 


Omnia presumuntur contra spoliato- 
rem. All things are presumed against a 
despoiler or wrong-loer. A leading maxim 
in the law of evidence. Best, Ev. p. 340, 
§ 803; Broom, Max. 938, 


Omnia presumuniur legitime facta 
donee probetur in contrarium, All 
things are presumed to be lawfully done, un- 
til proof be made to the contrary., Co. Litt. 
2320, Best, Ev. p. 387, § 300. 


Omnia preesumuntur rite et solem- 
niter esse acta donee probetur in con- 
trarium. All things are presumed io liave 
been rightly and duly performed until it is 
proved to the contrary. Co. Litt. 282; 
Broom, Max. 944. 


Omnia presumuntur solemniter esse 
acta. Co. Litt. 6. All things are presumed 
© have been done rightly. 


848 


OMNIS INTERPRETATIV, ETC. 


Omnia ques jure contrahuntur con- 
trario jure pereunt. Dig. 50, 17, 100. All 
things which are contracted by law perish by 
a contrary law, 


Omnia que sunt uxoris sunt ipsius 
viri. All things which are the wife's are 
the htisband’s. Bract. fol. 32; Co. Litt. 112c, 
See 2 Kent, Comm. 130-145. 


Omnia rite acta presumuntur, All 
things are presumed to have been rightly 
doue. Broom, Max. 944, 


CMNIBUS AD QUOS PRASENTES 
LITER PERVENERINT, SALUTEM, 
To all te whom the present leiters shall come, 
greeting, A form of address with which 
charters and deeds were anciently com- 
menced, 


Cmnis actio est loquela. Every action 
is a plaint or complaint. Co. Litt. 292. 


Omnis conclusio boni ét veri judicii 
sequitur ex bonis et veris prwemissis et 
dictis juratorum. Every conclusion of a 
good and true judgment follows from good 
and true premises, and the verdicts of jurors. 
Co. Litt. 2266. 


Omnis consensus tolHterrorem. Every 
congent removes error, Consent always re 
moves the effect of error. 2 Inst. 123. 


Omnis definitio in jure civili pericu- 
losa est, parum est enim ut non sub- 
verti possit. Dig. 50,17, 202, <All delini- 
tion in the civil law is hazardous, for there 
is little that cannot be subverted. 


Omnis definitio in lege periculosa. All 
definition in law is hazardous. 2 Wood. 
Lect. 196. 


Omnis exceptio est ipsa quoque 
regula. Every exception is itself alsoa rule. 


Oninisindemnatus pro innoxis legibug 
habetur. Every uncondemned person is 
held by the law as innocent. Lofft, 121. 


Omnis innovatio plus novitate per- 
turbat quam ultilitate prodest. LEvery 
innovation occasions more harm by its 
novelty than benefib by its utility. 2 Buist, 
3388; Broom, Max. 147. 


Omnis interpretatio si fieri potest ita 
fienda est in instrumentis, ut omnes con- 
trarietates amoveantur. Jenk, Cent. 96, 
Every interpretation, if if can be done, is to 
beso made in instruments that all contra- 
dictions may be removed. 


OMNIS INTERPRETATIO, ETC. 


Omnis interpretatio vel declarat, vel 
extendit, vel restringit. Every interpre- 
tation either declares, extends, or restrains. 


Omnis nova constitutio futuris formam 
imponere debet, non precteritis. Every 
new statute ought to prescribe a form tu 
future, not to past, acts. Bract. fol. 228; 2 
Inst. 95. 


Omnis persona est homo, sed non 
vicissim. Every person is a man, but not 
every mana person. Calvin. 


Omnis privatio presupponit habitum. 
Every privation presupposes a former enjoy- 
ment. Co. Litt. 3392. A “rule of phi- 
losophie” quoted by Lord Coke, and applied 
to the discontinnuancs of an estate. 


Omnis querela et omnis actio injuria- 
rum limita est infra certa tempora. Co. 
Litt. 114b. Every plaint and every action 
for injuries is limited within certain times. 


Omnis ratihabitio retrotrahitur et 
mandato priori cequiparatur. Every 
ratification relates back and is equivalent to 
a prior authority. Broom, Max. 757, $71; 
Chit. Cont. 196. 


Omnis regula suas patitur exceptiones. 
Every rule is liable to its own exceptions. 


OMNIUM. In mercantilelaw. <A term 
used to express the aggregate value of the 
different stock in which a loan is usually 
funded. Tomlins. 


Omnium contributione sarciatur quod 
pro omnibus datum est. 4 Hing. 121. 
That which is given for all is recompensed 
by the contribution of all. A principle of the 
law of general average. 


Omnium rerum quarum usus est, potest 
esse abusus, virtute solo excepta. ‘There 
may be an abuse of everything of which 
there is a use, virtue only excepted. Dav. Ir. 
K. B. 79. 


ON ACCOUNT. In part payment; in 
partial satisfaction of an account. The 
phrase is usually contrasted with “in full.” 


ON ACCOUNT OF WHOM IT MAY 
CONCERN. When a policy of insurance 
expresses that the insurance is made “on ac- 
count of whom it may concern,” it will cover 
ail persons having an insurable interest in 
the subject-matter at the date of the policy 
and who were then contemplated by the party 
procuring the insurance. 2 Pars, Mar, 
Law, 30. 

AM. DIOT. LAW—4 


849 


ONCUNNE. 


* OW CALL. Thero is no legal difference 
between an obligation payable “when de- 
manded” or “on demand” and one payable 
“on call” or “at any time called for.” In 
each case the debt is payable immediately 
22 Grat. 609. : 


ON CONDITION. These words may be 
construed to mean “on the terms,” in order 
to effectuate the intention of parties. 4 
Waits & 5. 302. 


ON DEFAULT. Ineaseof default; upon 
failure of stipulated action or performance; 
upon the occurrence of a failure, omission, 
or neglect of duty. 


ON DEMAND. 4A promissory note pay- 
able “on demand” is a present debt, and is 
payable without any iemand. 2 Mees. & W. 
461; 39 Me, 494. 

ON FILE. Filed; entered or placed upon 
the files; existing and remaining upon or 
among the proper files. 


ON OR ABOUT. A phrase used in re- 
citing the date of an occurrence or convey- 
ance, to escape the necessity of being bound 
by the statement of an exact date. 


ON OR BEFORE. These words, in- 
serted in a stipulation to do an act or pay 
money, entitle the party stipulating ta per 
form at any time before the day; and upon 


| performance, or tender and refusal, he is im- 


mediately vested with all the rights which 
would have attached if performance were 
made on the day. 6J.J. Marsh, 156, 


Once a fraud, always afraud. 13 Vin. 


Abr. 539. 


ONCE A MORTGAGE, ALWAYS A 
MORTGAGE. This rule signifies that an 
instrument originally intended as a mortgage, 
and not a deed, cannot beconverted intoany- 
thing else thana mortgage by any subsequent 
clause or agreement. 


Once a2 recompense, always a recom- 
pense. 19 Vin. Abr. 277. 


ONCE IN JEOPARDY. A phrase used 
to express the condition of a person charged 
with crime, who has once already, by legal 
proceedings, been put in danger of convic 
tion and punishment for the same offense. 


Once quit and cleared, ever quit and 
cleared. (Seotch, anis quit and clenged, ay 
quit and clenged.} Skene, de Verb. Sign. 
yoc. “Iter.,” ad lin. 


ONCUNNE. Accused. Du Cange. | 


N 


100,000 POUNDS CLAUSE 


ONE HUNDRED THOUSAND 
POUNDS CLAUSE. A precautionary 
stipuration inserted in a deed making a good 
tenant to the prweépe in a common recovery. 
See I Prest. Cony. 110. 


ONE-THIRD NEW FOR OLD. See 
New For OLp. 


ONERANDO PRO RATA POR- 
TIOWIS. A writ that lay for ajoint tenant 
or tenant in common who was distrained for 
more rent than his proportion of the land 
comes to. Reg, Orig. 182. 


ONERARI NON. In pleading. The 
name of a plea, in an action of debt, by which 
the defendant says that he ought not to be 
eharged. 


CNERATIO. A lading; a cargo. 
ONERATUR WISI. See O. Ni. 


ONERIS FERENDI. Lat. In thecivil 
law. ‘he servitude of support; a servitude 
by which the wall of a house is required to 
austain the wall or beams of the adjoining 
house. 


ONEROUS. A contract, lease, share, or 
other right is said to be “onerous” when the 
obligations attaching to it counter-balance or 
exceed the advantage to be derived from it, 
either absolutely or with reference to the par- 
ticular possessor. Sweet. 


ONEROUS CAUSE. InScotch law. A 
good and legal consideration. 


ONEROUS CONTRACT. In the civil 
law this term designates a contract based up- 
on any consideration given or promised, how- 
ever trifling or inconsiderable such congider- 
ation may be. Civil Code La. art, 1767. 


ONEROUS DEED. InScotchiaw. A 
deed given for a valuable consideration. 


Bell. 


ONEROUS GIFT. A gift madesubject 
to certain charges imposed by the donor on 
the donee. 


ONOMASTIC. A term applied to the 
signature of an instrument, the body of which 
is ina different handwriting from that of the 
signature. Best, Ev. 315. 


ONUS. Lat. A burden orload; a weight. 
The lading, burden, or cargo of a vessel. A 
charge; anincuinbrance. Cwmonere, (q.v.,) 
with the incumbrance. 


ONUS EPISCOPALE. Ancient custom- 
ary payments from the clergy to their dioce- 
san bishop, of synodals, pentecostals, ete. 


850 


OPEN CORPORATION 


ONUS IMPORTANDI. The charge of 
importing merchandise, mentioned in St. 
12 Car. II. c. 28. 


ONUS PROBANDI. Lat. Burden of 
proving; the burden of proof. The strict 
meaning of the term “onus probandi” is 
that, if no evidence is adduced by the party 
on whom the burden is cast, the issue must 
be found against him. 1 Houst. 44. 


OPE CONSILIO. Lat. By aid and 
counsel. A civil law term applied to acces- 
saries, similar in import to the “aiding and 
abetting” of the commen law. Often writ- 
ten “ope et constiio.” Burrill. 


OPEN. 1. To open a case is to begin it; 
to make an initiatory explanation of its feat- 
ures to the court, jury, reteree, etc., by oul- 
lining thé nature of the transactiou on which 
it is founded, the questions involved, and 
the character and general course of the evi- 
dence to be adduced. 

2. To open a court is to makea formal an- 
nouncement, usually by the erier, that its 
session has now begun, and that the business 
before the court will be proceeded with. 

3. To open a legal document, e. g.,a depo- 
sition, is to break the seals by which it was 
secured, and lay it open to view, or to bring 
it into court ready for use. 

4, To open a judgment, decree, or similar 
act of acourt is to lift the bar of finality 
which it imposes, so as to allow a party whe 
is entitled to such relief to proceed to are. 
examination of the merits. 

5. To open a street or highway ig to estab- 
lish it and make it available to public travel. 

6. To open a rule or order is to revoke the 
action by which it was made final or abso- 
lute, and give an opportunity to show cause 
against it, 

7. To open bids received on a judicial sale 
of property is to reject or cancel them for 
fraud or other cause, and direct a resale. 


OPEN ACCOUNT. An account which 
has not been finally settled or closed, but is 
still running or open tu future adjustment or 
liquidation. 

Open account, in legal as wellas in ordinary lan- 
guage, means an indebtedness subject to future 


adjustment, and which may be reduced or modi- 
fied by proof.. 1 Ga. 275. 


OPEN A CREDIT. To accept or pay 
the draft of a correspondent who has nut 
furnished funds. Vardessus, no. 296. 


OPEN CORPORATION. Onein which 
ail the citizens or corporators have a vote in 


| 


[= 


| 


OPEN COURT 851 


the election of the officers of the corporation. 
3 Bland, 416, note. 


OPEN COURT. This term may mean 
either a court which has been formally con- 
vened and declared open for the transaction 
of its proper judicial business, or a court 
which is freely open to the approach of all 
decent and orderly persons in the character 
of spectators. 


OPEN DOORS. In Scotch law. “Let- 
ters of open doors” are process which em- 
powers the messenger, or officer of the law, 
to break open doors of houses or rooms in 
which the debtor has placed his goods. Bell. 


OPEN FIELDS, or MEADOWS. In 
English law. Fields which are undivided, 
but belong to separate owners; the part of 
each owner is marked off by boundaries un- 
til the crop has been carried off, when the 
pasture is shared promiscuously by the joint 
herd of all the owners. Elton, Commons, 
31; Sweet. 


OPEN INSOLVENCY. The condition 
of one who has no property, within the reach 
of the law, applicable to the payment of any 
debt. 8 Blackf. 305. 


OPEN LAW. The making or waging of 
law. Magna Charta, c. 21. 


OPEN POLICY. In marine insurance. 
One in which the value of the subject insured 
is not Axed or agreed upon in the policy, as 
between the assured and the underwriter, 
but is left to be estimated in case of loss. 
The term is opposed to “valued policy,” in 
which the value of the subject insured is 
fixed for the purpose of the insurance, and 
expressed on the face of the policy. Mozley 
& Whitley. 


OPEN THEFT. In Saxon law. The 
game With the Latin “/furtum manifestum,” 


(g. 0-) 


OPENING. In American practice. The 
beginning; the commencement; the first ad- 
dress of the counsel. 


OPENING A COMMISSION. Anen- 
tering upon the duties under a commission, 
or commencing to act under a commission, 
is so termed. Thus, the judges of assize 
and nist prius derive their authority to act 
under or by virtue of commissions directed 
to them for that purpose; and, when they 
commence acting under the powers so com- 
mitted to them, they are said to open the 
commissions; and the day on which they so 


OPERATION OF LAW 


commence their proceedings is thence termed 
the “cormmission day of the assizes.” Brown. 


OPENING A JUDGMENT. The act 
of the court in so far relaxing the finality 
and conclusiveness of a judgment as to allow 
a re-examination of the case on which it 
was rendered. This is done at the instance 
of a party showing good cause why the exe- 
cution of the judgment wouid be inequitable, 
It so far annuls the judyment as to prevent 
its enforcement until the final determination 
upon it, but does not in the mean time releasé 
its lien upon real estate. 


OPENING A RULE. The act of re 
storing or recalling a rule which has been 
made absolute to its conditional state, asa 
rule nisi, go as to readmit of cause being 
shown against the rule. Thus, when a rule 
to show cause has been made absolute under 
a inistaken impression that no counsel had 
been instructed to show cause against it, it 
is usual for the party at whose instance the 
rule was obtained to consent to have the rule 
opened, by which all the proceedings subse- 
quent to the day when cause ought to have 
been shown against it are in effect nullified, 
and the rule is then argued in the ordinary 
way. Brown. 


OPENING BIDDINGS. In equity 
practice. The allowance by a court, on sutii- 
cient cause shown, of a resale of property 
once sold under a decree. 


OPENING THE PLEADINGS. Stat. 
ing briefly at a trial before a jury the sub. 
stance of the pleadings. This is done by the 
junior counsel for the plaintiff at the com- 
mencement of the trial. 


OPENTIDE. The time after corn is car- 
ried out of the fields. 


OPERA. A composition of a dramatic 
kind, set to music and sung, accompanied 
with musical instruments, and enriched with 
appropriate costumes, scenery, ete. The 
house in which operas are represented is 
termed an “opera-house.” 1 Pittsb. R. 71. 


OPERARII. Suchtenants, under feudal 
tenures, as held some little portions of land 
by the duty of performing bodily labor and 
servile works for their lord. 


OPERATIO. One day’s work performed 
by a tenant for his lord. 


OPERATION OF LAW. This term 
expresses the manner in which rights, and 
sometimes liabilities, devolve upon a person 
by the mere application to the particular 


OPERATIVE 


N transaction of the established rules of law, 


without the act or co-operation of the party 
himseif. 


OPERATIVE. <A workman; a laboring 
Man; an artisan; particularly one employed 
in factories. ¥ 

OPERATIVE PART. That part of a 
conveyance, or of any instrument intended 
for the creation or transference of rights, by 
which the main object of the instrument is 
carried into effect. It is distinguished from 
introductory matter, recitals, formal conclu- 
sion, ete. 


OPERATIVE WORDS, in a deed or 
lease, arethe words which effect the transac- 
tion intended to be consummated by the in- 
stroment, 


OPERIS NOVI NUNTIATIO, Inthe 
civillaw. A protest or warning against [of] 
anew work. Dig. 39, 1. 


OPETIDE. The ancient time of mar- 
riage, from Epiphany to Ash-Wednesday. 


Opinio est duplex, scilicet, opinio vul- 
garis, orta inter graves et discretos, et 
quee vultum veritatis habet; et opinio 
tantum orta inter leves et vulgares 
homines, absque specie veritatis. 4 Coke, 
107. Opinion is of two kinds, namely, com- 
mon opinion, which springs up among graye 
and discreet men, and which has the appear- 
ance of truth, and opinion which springs up 
ouly among light and foolish men, without 
the semblance of truth. 


Opinio que favet testamento est te- 
nenda. Theopinion which favors a will is to 
be followed. 1 W. Bl. 13, arg. 


OPINION. 1. In the law of evidence, 
opinion is an inference or conclusion drawn 
by a witness from facts some of which are 
known to him and others assumed, or drawn 
from facts which, though lending probability 
to the inference, do not evolve it bya process 
of absolutely necessary reasoning. 


An inference necessarily involving certain facts 
may be stated without the facts, the inference be- 
ing an equivalent to a specification of the facts; 
but, when the facts are not necessarily involved 
in the inference (¢. g., when the inference may be 
sustained upon either of several distinct phases of 
fact, neither of which it necessarily involves,) 
then the facts must be stated. Whart. Ev. § 510, 


2. A document prepared by an attorney for 
his client, embodying his understanding of 
the law as applicable to a state of facts sub- 
mitted to him for that purpose. 

3. The statement by a judge orcourt of the 


852 


OPTIMA EST LEX QUA, ETC, 


decision reached in regard to a canse tried or 
argued before them, expounding the law as 
applied to the case, and detailing tle reasons 
upon which the judgment is based. 


Oportet quod certa res deducatur in 
donationem. It is necessary that a certain 
thing be brought into the gift, or mace the 
subject of the conveyance. Bract. fol. 15d. 


Oportet quod certa res deducatur in 
judicium. Jenk. Cent. 84. <A thing cer- 
tain must be brought to judgment. 


Oportet quod certa sit res que vendi- 
tur. It is necessary that there should bea 
certain thing whichis sold. Tomakea valid 
sale, there must be certainty as to the thing 
which is sold. Bract. fol. 616. 


Oportet quod certs persone, terre, 
et certi status comprehendantur in dec- 
laratione usuum. 9 Coke, 9. It is neces. 
sary that given persons, lands, and estates 
should be comprehended in a declaration of 
uses. 


OPPIGNERARE. Lat. 
law. To pledge. Calvin. 


In the civil 


OPPOSER. An officer formerly belong- 
ing to the green-wax in the exchequer. 


OPPOSITE. 
nent.” 


OPPOSITION. In bankruptey prac- 
tice. Opposition is the refusal of a creditor 
to assent to the debtor’s discharge under the 
bankrupt law. 


An old word for “oppo 


In French law. A motion to open a 
judgment by default and let the defendant 
in to a defense. 


OPPRESSION. The misdemeanor com- 
mitted by a public officer, who, under color 
of his office, wrongfully inflicts upon any 
person any bodily harm, imprisonment, or 
other injury. 1 Russ. Crimes, 297; Steph. 
Dig. Crim. Law, 71. 


OPPRESSOR. A public officer who un- 
lawfully uses his authority by way of oppres- 
sion, (g. 0.) 


OPPROBRIUM. In thecivillaw. Ig- 
nominy; infamy; shame. 


Optima est legis interpres consuetudo. 
Custom is the best interpreter of the law. 
Dig. 1, 3, 37; Lofft, 2387; Broom, Max. 93L 

Optima est lex gue minimum relin- 
quit arbitrio judicis; optimus judex qui 
minimum sibi, That lawis the best which 


OPTIMA, STATUTI, ETC. 853 


leaves least to the discretion of the judge; 
that judge is the best who leaves least to his 
own. Bac. Aphorisms, 46; 2 Dwar. St. 782. 
That system of law is best which confides as 
little as possible to the discretion of the judge; 
that judge the best who relies as little as pos- 
sibie on his own opinion. Broom, Max. 84; 
1 Kent, Comm. 478. 


Optima statuti interpretatrix est (om- 
nibus perticulis ejusdem inspectis) ip- 
sum statutum. The best interpreter of a 
statute is (all its parts being considered) the 
statute itself. 
239, mux. 68, 


OPTIMACY. Nebility; men of the high- 
est rank, 


Optimam esse legem, que minimum 
relinquit arbitrio judicis; id quod cer- 
titudo ejus preestat. That law is the best 
which leaves Lhe least discretion to the judge; 
and this is an advantage which results from 
its certainty. Bae. Aphorisms, 8. 


Optimus interpres rerum usus. Use 
or usage is the best interpreter of things. 
2 Inst. 282; Broom, Max. 917, 930, 931. 


Optimus interpretandi modus est sic 
leges interpretari ut leges legibus con- 
cordant. 8 Coke, 169. Ths best mode of 
interpretation is so to interpret laws that they 
may accord with each other. 


Optimus legum interpres consuetudo. 
4 Inst. 75. Custom is the best interpreter 
of the laws. 


OPTION. In English ecclesiastical 
law. <A customary prerogative of an arch- 
bishop, when a bishop is consecrated by him, 
to name a clerk or chaplain of his own to be 
provided for by such suffragan bishop; in 
lieu of which it is now usual for the bishop 
to make over by deed to the archbishop, his 
executors and assigns, the next presentation 
of such dignity or benetice in the bishop’s 
disposal wiihin that see, as the archbishop 
himself shall cheose, which is therefore called 
his “option.” 1 Bl. Comm. 381; 3 Steph. 
Comm. 65, 64; Cowell. 

In contracts. An option is a privilege 
existing in one person, for which he has paid 
money, which gives him the right to buy cer- 
tain merchanilise or certain specified securi- 
ties from another person, if he chooses, at 
any time within an agreed period, at a fixed 
price, or to sel/ such property to such other 
person at an agreed price and time. If the 
option gives the choices of buying or not buy- 


8 Coke, 1178; Wing. Max. p. | 


ORANDO PRO REGE ET REGNO 


ing, if is denominated a “call.” If it gives 
the choice of selling or not, it is called a 
“put.” If it is a combination of both these, 
and gives the privilege of either buying or 
selling or not, tt is called a “straddle” ora 
“spread eagle.” These terms are used on 
the stock-exchange. 


OPTIONAI WRIT. In old English 
practice. That species of original writ, oth- 
erwise called a “precipe,” which was framed 
in the alternative, commanding the defend- 
ant to do the thing required, or show the rea- 
son wherefore he had not done it. 3 BI. 
Comm. 274. 


OPUS. Lat. 
of work or labor. 


OPUS LOCATUM. The product of 
work let for use to another; or the hiring out 
of work or labor to be done upon a thing. 


OPUS MANIFICUM. In old English 
law. labor done by the hands; manual la- 
bor; such as making a hedge, digging a ditch. 
Fleta, lib. 2, c. 48, § 3. 


OPUS NOVUM. In the civil law. A 
new work. By this term was meant some- 
thing newly built upon land, or taken from 
a work already ereeted. He was said opus 
novum facere (to make a new work) who, 
either by building or by taking anything 
away, changed the former appeurance of a 
work, Dig. 89,2, 1, 11. 


OR. <A term used in heraldry, and sig- 
nifying gold; called “sol” by same heralds 
when it occurs in the arms of princes, and 
“topaz” or “carbuncle” when borne by peers. 
Engravers represent it by an indelinite nuim- 
ber of small points. Wharton. 


ORA. <A Saxon coin, valued at sixteen 
pence, and sometimes at twenty pence. 


ORACULUM. In the civil law. The 
name of a kind of response or sentence given 
by the Roman emperors. 


ORAL. Uttered by the month or in 
words; spoken, not written. 


ORAL PLEADING. Pleading by word 
of mouth, in the actual presence of the court. 
This was the ancient mode of pleading in 
England, and continued to the reign of Ed- 
ward III. Steph. Pl. 23-26. 


ORANDO PRO REGE ET REGNO. 
An ancient writ which issued, while there 
was no standing collect for a sitting parlia- 
ment, to pray for the peace and good govern- 
ment of the realm. 


Work; labor; the product 


~~ 


ORANGEMEN 


ORANGEMEN. A partyin Ireland 
who keep alive the views of William of 
Orange. Wharton. 


ORATOR. The plaintiff in a cause or 
matter in chancery, when addressing or pe- 
titioning the court, used to style himself “or- 
ator,” and, when a woman, “oralrix.” But 
these terms have long gone into disuse, and 
the customary phrases now are “plaintiff” 
or “petitioner,” 

In Reman law, the term denoted an ad- 
vocate. 


ORATRIX. <A female petitioner; a fe 
male plaintiff in a bill in chancery was for- 
merly so valled. 


ORBATION. Deprivation of one’s pa- 
rents or children, or privation in general. 
Little used. 


ORCINUS LIBERTUS. Lat. In 
Roman law. A freedman who obtained his 
liberty by the direct operation of the will or 
testament of his deceased master was so 
called, being the freedinan of the deceased, 
(orcinus,) not of the heres. Brown. 


ORDAIN. ‘To institute or establish; to 
make an ordinance; to enact a constitution 
or law. 


ORDEAL. The most ancient species of 
trial, in Saxon and old English law, being 
peculiarly distinguished by the appellation 
ot “judicium Dei,” or judgment of God, it 
being supposed that supernatural interven- 


tion would rescue an innocent person from | 
the danger of physical harm to which he | 


was exposed in this species of trial. The or- 
deal was of two sorts,—either fire ordeal or 
water ordeal; the former being confined to 
persons of higher rank, the latter to the com- 
mon people. 4 Bl. Comm. 842. 


ORDEFFE, or ORDELFE. A liberty 
whereby a man claims the ore found in his 
own land; also, the ore lying under land. 
Cowell. 


ORDELS. Inold English law. The 
right of administering oaths and adjudging 
trials by ordeal within a precinct or liberty. 
Cowell. 


ORDENAMIENTO. In Spanish law. 
An order emanating from the sovereign, and 
differing from a cedula only in form and in 
the mode of its promulgation. Schm. Civil 
Law, Introd. 938, nate. 


ORDENAMIENTO DE ALCALA. 
A collection of Spanish law promulgated by 


854 


2s SS eee 


ORDER OF DISCHARGE 


the Cortes in the year 1348. Schm. Civil 
Law, Introd. 75. ; 


ORDER. Ine general sense. A man- 
date, precept; a command or direction an- 
thoritatively given; a rule or regulation. 

The distiaction between “order” and “requisi- 
tion” is that the first is a mandatory act, the lat- 
ter a request. 19 Johns. 7. 

In practice. Livery direction of a court 
or judge made or entered in writing, and not 
included in a judgment, is denominated an 
“order.” An application for an order is a 
motion, Code Civil Proc. Cal. § 1003; Code 
N. Y. $ 400. 


Orders are also issued by subordinate legislative 
authorities. Such are the English orders in coun- 
cil, or orders issued by the privy council in the 
name of the queen, either in exercise of the royal 
preroyative or in pursuance of an act of parlia- 
ment. The rules of court under the judicature act 
are grouped together in the form of orders, each 
order dealing with a particular subject-matter. 
Sweet. 

An order is also an informal bill of ex- 
change or letter of request whereby the party 
to whom it is addressed is directed to pay or 
deliver to a person therein named the whole 
or part of a fund or other property of Lhe per- 
son muking the order, and which is in the 
possession of the drawee. 

lt is further a designation of the person to 
whom a bill of exchange or negotiable prom- 
issory note is to be paid. 

it is also used to designate a rank, class, 
or division of men; as the order of nobles, 
order of Knights, order of priests, ete. 

In French law. ‘The name order (ordre) 
is given to the operation which has tor its 
object to fix the rank of the preferences 
claimed by the crediturs in the distribution 
ot the price [arising from the sale] of an im- 
movable affected by theirliens. Dalloz, mot 
“Ordre.” 


ORDER AND DISPOSITION of goods 
and chattels. When goods are in the “order 
and disposition” of a bankrupt, they go to 
his trustee, and have gone so since the tima 
of James I. Wharton. 


ORDER NISI. A provisional or condi- 
tional order, allowing a certain time within 
which to do some required act, on failure of 
which the order will be made absolute. 


ORDER OF DISCHARGE. In Eng- 
land. An order wade under the bankruptey 
act of 1869, by a court of bankruptcy, the ef- 
tect of which is to discharge a bankrupt from 
all debts, claims, or demands provable under 
the bankruptey. 


ORDER OF FILIATION 


ORDER OF FILIATION. An order 
made by a court or judge having Jurisdiction, 
fixing the paternity of a bastard child upon 
nu given man, and requiring him to provide 
for its support, 


ORDER OF REVIVOR. In English 
practice. An order as of course for the con- 
finuance of an abated suit. It superseded 
the bill of revivor. 


ORDERS. The directions as to the course 
und purpose of a voyage given by the owner 
of the vessel to the captain or master. For 
other meanings, see ORDER. 


ORDERS OF THE DAY. Any mem- 
ber of the English house of communs who 
wishes to propose any question, or to “move 
the house,” as it is termed, must, in order to 
givethe house due notice of his intention, 
state the form or nature of his motion on a 
previous day, and have it entered in a book 
termed the “order-book;” and the motions 
80 entered, the house arranges, shall be con- 
sidered on particular days, and such wotions 
or matters, when the day arrives tor their be- 
ing considered, are then termed the “orders 
of the day.” Brown. <A similar practice 
obtains in the legislative bodies of this coun- 
try. 


ORDINANCE. A rule established by 
authority; apermanentrule of action; a law 
or statute. Ina more limited sense, the term 
is used to designate the anactments of the 
legislative body of a municipal corporation. 

Strictly, a billor law which might stand with 
the old law, and did not alter any statute in force 
at the time, and which becume complete by the 
royal assent on the parliament rotl, without any 
entry on the statute roli, A bill or law which 
might at any time be amended by the parliament, 
without any statute. Hale, Com. Law. An or- 
dinance was otherwise distinguished from a stat- 
ute by the circumstance that the latter required 
the threefold ussent of king, lords, and commons, 
while zn ordinance might be ordained by one or 
two of thease constituent bodies. See 4 Inst. 25. 

The name has also been given to certain 
enactments, more general in their character 
than ordinary statutes, and serving as or- 
ganic laws, yet not exactly to be called “con- 
atitutions.” Such was the “Ordinance for 
the government of the North-West Terri- 
tory,” enacted by congress in 1787. 


ORDINANCE OF THE FOREST. 
In English law. A statute made touching 
matters and causea of the forest. 33 & 34 
Edw... 


855 


ORDINARY NEGLECT 


ORDINANDI LEX. The law of pre- 
cedure, as distinguished from the substantial 
part of the law. 


Ordinarius ita dicitur quia habet or- 
dinariam jurisdietionem, in jure pro- 
prio, et non propter deputationem. Co. 
Litt. 96. The ordinary is so called because 
he has an ordinary jurisdiction in his own 
right, and not a deputed one, 


ORDINARY. At common law. One 
who has exempt and immediate jurisdiction 
in causes ecclesiastical. Also a bishop; and 
an archbishop is the ordinary of the whole 
province, to visit and receive appeals from 
inferior jurisdictions, Alsoa commissary or 
oflicial of a bishop or other ecclesiastical judge 
having judicial power; an archdeacon; officer 
of the royal household. Wharton. 

In American law. A judicial officer, in 
several of the states, clothed by statute with 
powers in regard to wills, probate, adminis- 
tration, guardianship, ete. 

In Scotch law. A single judge of the 
court of session, who decides with or without 
a jury, as the case may be. Brande. 

In the civil law. A judge who has au- 
thority to take cognizance of causes in his 
own right, and not by deputation. 


ORDINARY CARE. That degree of 
care which persons of ordinary care and pru- 
dence are accustomed to use and employ, un- 
der the same or similar circumstances,in order 
to conduct the enterprise in which they are 
engaged to a safe and successful termination, 
having due regard to the rights of others and 
the objects to be accomplished. 8 Ohio St, 
581. 

The phrase “ordinary care” is equivalent to rea- 
sonable care, and necossarily involves the idea 
that such care was to be used as a reasonable per- 
son, under like circumstances, would adopt to avoid 
an accident. 8 Allen, 89. See, also, 25 Ind, 185; 6 
Duer, 683; 28 Vt. 458; 23 Conn. 443. 


ORDINARY CONVEYANCES. Those 
deeds of transfer which are entered into be- 
tween two or more persons, without an as- 
surance in a superior court of justice. 
Wharton. 


ORDINARY DILIGENCE is that de- 
gree of care which men of common prudence 
generally exercise in their affairs, in the coun- 
try and the age in which they live. $ 
Brewst. 9, 


ORDINARY NEGLECT or NEGLI- 
GENCE. The omission of that care which 
aiuan of common prudence usually takes of 


ORDINARY OF ASSIZE, ETC. 


N his own concerns. 1 Edw. Ch. 513, 548. See 


Aa. Ved Sl. 


ORDINARY OF ASSIZE AND SES- 
SIONS. In old English law. A deputy of 
the bishop of the diocese, anciently appointed 
to give malefactors their neck-verses, and 
judge whether they read-or not; also to per- 
form divine services for’them, and assist in 
preparing them for death. Wharton, 


ORDINARY OF NEWGATE. The 
clergyman who is attendant upon condemned 
malefuctors in that prison to prepare them 
for death; he records the behavior of such 
persons. Formerly it was the custom of the 
ordinary to publish a small pamphlet upon 
the execution of any remarkable criminal. 
Wharton. 


ORDINARY SKILL in an art, means 
that degree of skill which men engaged in 
that partieular art usually employ; not that 
which belongs to a few men only, of extra- 
ordinary endowments and capacities. 20 Pa. 
St. 130; 11 Mees. & W. 113; 20 Mart. (La.) 
7d. 


ORDINATION is the ceremony by which 
& bishop confers on a person the privileges 
and powers necessary for the execution of 
sacerdotal functions in the ehureh. Phillim. 
Ece. Law, 110. 


ORDINATIONE CONTRA SERVIEN- 
TES. A writ that lay against aservant for 
leaving his master contrary to the ordinance 
of St. 23 & 24 Edw. IIT. Reg. Orig. 189. 


ORDINATUM EST. In old practice 
Itis ordered. The initial words of rules of 
eourt When entered in Latin. 


Ordine placitandi servato, servatur et 
jus. When the order of pleading is observed, 
the law also is observed. Co. Litt. 3082; 
Broom, Max. 188. 


ORDINES. <A general chapter or other 
solemn convention of the religious of a par- 
ticular order. 


ORDINES MAJORES ET MINORES. 
In ececlesiastical law. The holy orders of 
priest, deacon, and subdeacon, any of which 
qualitied for presentation and admission to an 
ecclesiastical dignity or cure were called “o7- 
dines majores;” and the inferior orders of 
chanters, psalmists, ostiary, reader, exorcist, 
and acolyte were called “ordines minores.” 
Persons ordained to the erdines minores had 
their prima tonsura, different from the 
tonsura elericalis. Cowell, 


856 


ORGANIZE 


ORDINIS BENEFICIUM. Lat. In 
the elvil law. The benefit or privilege of 
order; the privilege which a surety for a 
debtor had of requiring that his principal 
should be discussed, or thoroughly prosecut- 
ed, before the creditor could resort to him. 
Nov. 4, ¢. 1; Heinece. Elem. lib. 3, tit. 2], 
§ 883. 


ORDINUM FUGITIVI. In old En- 
glish law. Those of the religious who de- 
serted their houses, and, throwing off the 
habits, renounced their particular order in 
contempt of their oath and other obligations. 
Paroch. Antig. 388. 


ORDO. Lat. That rule which monks 
were obliged Loobserve. Order; regular suc- 
cession. An order of a court. 


ORDO ALBUS. The white friars or Au- 
gustines. Du Cange, 


ORDO ATTACHIAMENTORUM. In 
old practice. The order of attachments. 
Fleta, lib. 2, ¢. 51, § 12. 


ORDO GRISHUS. The gray friars, or 
order of Cistercians. Du Cange. 

ORDO JUDICIORUM. In the canon 
law. The order of judgments; the rule by 
which the due course of hearing cach cause 
was prescribed. 4 Reeve, Hug. Law, 17. 


ORDO NIGER. The black friars, or 
Benedictines. The Cluniacs likewise wore 
black. Du Cange, ; 


ORE-LEAVE. A license or right to dig 
and take ore from land. 84 Pa. St. 840. 


ORE TENUS. By word of month; orally. 
Pieading was anciently carried on ove tenits, 
at the bar of the court. 3 Bl. Comin. 293, 


ORF'GILD. In Saxon law. The price 
or value of a beast. A payment for a beast. 
The payment or forfeiture of a beast. A pen- 
alty for taking away cattle. Spelman, 

ORGANIC LAW. Tbe fundamental 
law, or constitution, of a state or nation, 
written or unwritten; that law or system of 
laws or principles which detines and estab- 
lishes the organization of its government, 


ORGANIZE. To establish or furnish 
with organs; to systematize; to put into 
working order; to arrange in order for the 
normal exercise of its appropriate functions, 

The word “organize,” as used in railroad 
and other charters, ordinarily signifies the 
choice and qualification of all necessary of- 
ficers for the transaction of the business of 
the corporation. This is usually done after 


ORGILD 


a!l the capital stock has been subscribed for. 
38 Conn. 66. 

ORGILD. In Saxon law. Without 
recompense; as where no satisfaction was ta 
be made for tlie death of a man killed, so that 
he was judged lawfully slain. Spelman. 


ORIGINAL. Primitive; first in order; 
bearing its own authority, and not deriving 
authority from an outside source; as original 
jurisdiction, orzginal writ, ete. As applied 
to documents, the original is the first copy 
or archetype; that from which another in- 
atrument is transcribed, copied, or imitated. 


ORIGINAL AND DERIVATIVE 
ESTATES. An original is the first of sev- 
eral estates, bearing to each other the re- 
lation of a particular estate and a reversion. 
An original estate is contrasted with a deriva- 
tive estate; and a derivative estate is a par- 
ticular interest carved out of another estate 
of larger extent. Prest. Est, 125, 


ORIGINAL BILL. In equity plead- 
ing. A bill which relates to some matter 
not before litigaied in the court by the same 
persons standing in thesame interests, Mitf. 
Kq. Pl. 33. 

In old practice. The ancient mode of 
commencing actions in the English court of 
king’s bench. See BILL. 


ORIGINAL CHARTER. In Scotch 
law. One by which the tirst grant of land 
is made. On the other hand, a charter by 
progress is one renewing the grant ia favor 
of the heir or singular successor of the first 
or succeeding vassals. Bell. 


ORIGINAL CONVEYALICES. Those 
conveyances at common law, otherwise 
termed “primary,” by which a benefit or es- 
tate is created or first arises; comprising 
feofiments, gifts, grants, leases, exchanges, 
and partitions. 2 Bi. Comm. 309, 


ORIGINAL ENTRY. The first entry 
of an item of an account made by a trader or 
other person in his acconnt-books, as distin- 
guished from entries posted into the ledger 
or copied from other books. 


ORIGINAL JURISDICTION. Juris- 
diction in the first instance; jurisdiction to 
take cognizance of a cause at its inception, 
try it, and pass judgment upon the law and 
facts. Distinguished frum appellate juris- 
diction, ‘ 

ORIGINAL PROCESS. That by which 
& judicial proceeding is instituted; process to 


857 


ORPHANAGE PART 


compel the appearance of the defendant. 
Distinguished from “mesne” process, which 
issues, during the progress of a suit, for 
some subordinate or collateral purpose; und 
from “final” process, which is process of ex- 
ecution, 


OCRIGINAL WRIT. In English prae- 
tice. An original writ was the process for- 
merly in use for the commencement of per- 
sonal actions. It was a mandatory letter 
from the king, issuing ont of chancery, sealed 
with the great seal, and directed to the sher- 
iff of the county Wherein the injury was com- 
mitted, or was supposed to have been com- 
mitted, requiring him to eommand the 
wrong-doer or accused party either to do jus- 
tice to the plaintiff or else to appear in court 
and answer the accusation against him. This 
writ is now disused, the writ of summons 
being the process prescribed by the uniformi- 
ty of process act for commencing perspnal 
actions; and under the judicature act, 1873, 
all suits, even in the court of chancery, are 
to be commenced by such writs of summons. 
Brown. 


ORIGINALIA. In Englishlaw. Tran- 
scripts sent to the remembrancer’s office in 
the exchequer out of the chancery, distin- 
guished from recorda, which contain the 
judgments and pleadings in actions tried be- 
fore the barons, 


Origine propria neminem posse vo- 
luntate sua eximi manifestum est. Itis 
evident that no one is able of his own pleas- 
ure, to do away with his proper origin, Code 
10, 38, 4; Broom, Max. 77. 


Origo rei inspici debet. The origin of 
a thing ought to be regarded. (Co, Litt. 2480. 


ORNEST. In old English law. The 
trial by battle, which does not seem to huyve 
been usual in England before the time of the 
Conqueror, though originating In the king- 
doms of the north, where it was practiced 
under the name of “folmgang,” from the 
custom of fighting duels on a small islund 
or holm. Wharton. 


ORPHAN. A minor or infant who has 
Jost both (or one) of his or her parents. 
More particularly, a fatheriess child. 33 Pa. 
St. 9. 


ORPHANAGE PART. That portion of 
an intestate’s elfects which his children were 
entitled to by the custom of London. This 
custom appears to have been a remnant of 
what was once a general law all over Eng- 


OUT OF THE STATE 


OUT OF THE STATE. Beyond sea, 
{which title see.) 


OUT OF TIME. A mercantile phrase 
applied to a ship or vessel that has been so 
long at sea as to justify the belief of her total 
loss. 

In another sense, a vessel is said to be out 
of time when, computed from her known 
day of sailing, the time that has elapsed ex- 
ceeds the average duration of similar voyages 
at the same season of the year. The phivase 
is identical with “missing ship.” 2 Duer, 
Tns. 469. 


OUTER BAR. In the English courts, 
barristers at law have been divided into two 
classes, Viz., queen’s counsel, who are adinit- 
ted within the bar of the courts, in seats spe- 
cially reserved for themselves, and junior 
counsel, who sit without the bar; and the 
latter are thence frequently termed barristers 
of the “outer bar,” or “utter bar,” in con- 
tradistinction to the former class. Brown. 


OUTER HOUSE. The name given to 
the great hall of the parliament house in 
Edinburgh, in which the lords ordinary of the 
court of session sit as single judges to hear 
causes. The term is used colloquially as ex- 
pressive of the business done there in contra- 
distinction to the “Inner House,” the name 
given to the chambers in which the first and 
secoud divisions of the court of session hold 
their sittings. Bell. 


OUTFANGTHEF. A liberty or privi- 
lege inthe ancient common law, whereby a 
lord was enabled to call any man dwelling in 
his manor, and taken for felony in another 
place out of his fee, to judgment in his own 
court. Du Cange. 


OUTFIT. 1. An allowance made by 
the United States government to one of its 
diplomatic representatives soing abroad, for 
the expense of his equipment. 

2. This term, in its original use, as applying 
to ships, embraced those objects connected 
with a ship which were necessary for the 
sailing of her, and without which she would 
not in fact be navigable. But in ships en- 
gaged in whaling voyages the word hag ac- 
quired &@ much more extended signification, 
9 Mete. (Mass.) 364. 


OUTHEHST, or OUTHOM. .A calling 
men out to the army by sound of horn. 
Jacob. 


OUTHOUSE. Any house necessary for 
the purposes of life, in which the owner does 


859 


OUTSTANDING 


not make his constant or principal residence, 
is an outhouse. 2 Root, 516. 

A smaller or subordinate building connected 
with a dwelling, usually detached frem it and 
standing at a little distance from It, not intended 
for persons to live In, but to serve some purpose of 
convenience or necessity; a8 a barn, a dairy, 6 tool- 
house, and the like. 

OUTLAND. The Saxon thanes divided 
their hereditary lands into inland, such as 
lay nearest their dwelling, which they kept 
to their own use, and outland, which lay be- 
yond the demesnes, and was granted out to 
tenants, at the will of the lord, like copyhold 
estates. This ontland they subdivided into 
two parts. One part they disposed among 
those who attended their persons, called 
“theodans,” or lesser thanes; the other part 
they allotted to thelr husbandmen, or churls, 
Jacob. 


CUTLAW. In English law. One who 
ig put out of the protection or aid of the law. 


OUTLAWED, when applied to a promis- 
sory note, means barred by the statute of lim- 
itations. 387 Me. 389, 


OUTLAWRY. In English law. <A pro- 
cess by which a defendant or person in con- 
tempt on a civil or criminal process was de- 
clared an outlaw. If for treason or felony, 
it amounted to conviction and attainder. 
Stim. Law Gloss. 


OUTPARTERS. 
Cowell, 


OUTPUTERS. Such as set watches for 
the robbing any manor-house. Cowell. 


OUTRAGE. Injurious violence, or, in 
general, any species of serious wrong offered 
to the person, feelings, or rights of another, 
See 44 lowa, 314. 


OUTRIDERS. In Englishlaw. Bailiffs- 
errant employed by sheriffs or their deputies 
to ride to the extremities of their counties or 
hundreds to summon men to the county or 
hundred court. Wharton, 


OUTROPER. A person to whom the 
business ef selling by auction was confined 
by statute. 2 EL. Bl. 557. 


Stealers of cattle. 


OUTSETTER. In Seotch law. Pub- 
lisher. d How. State Tr. 603. 
OUTSTANDING. 1. Remaining un- 


discharged; unpaid; uncollected; as an out- 
standing debt. 
2. Existing as an adverse claim or preten- 
sion; not united with, or merged in, the title 
or claim of the party; as an outstanding title, 


OUT OF THE STATE 


OUT OF THE STATE. Beyond sea, 
(which title see.) 


OUT OF TIME. A mercantile phrase 
applied to a ship or vessel that has heen so 
long at sea as to justily the belief of her total 
loss. 

In atiother sense, 4 vessel is said to be out 
of time when, computed from her known 


day of sailing, the time that has elapsed ex- | 


ceeils the average duration of similar voyages 
at the same season of the year. The phrase 
is identical with “missing ship.” 2 Duer, 
Ins. 469. 


OUTER BAR. In the English courts, 
barristers at law have been divided into two 
classes, viz., queen’s counsel, who are admit- 
ted within the bar of the courts, in seats spe- 
cially reserved for themselves, and junior 
counsel, who sit without the bar; and the 
latter are thence frequently termed barristers 
of the “outer bar,” or “utter bar,” in con- 
tradistinction to the former class. Brown. 


OUTER HOUSE. The name given to 
the great hall of the parliament house in 
Edinburgh, in which the lords ordinary of the 
court of session sit as single judges to hear 
causes. The term is used colloquially as ex- 
pressive of the business done there in contra- 
distinction to the “Inner House,” the name 
given to the chambers in which the first and 
second divisions of the court of session hold 
their sittings. Bell. 


OUTFANGTHEF. A liberty or privi- 
lege in the ancient common law, whereby a 
lord was enabled to call any man dwelling in 
his manor, and taken for felony in another 
place out of his fee, to judgment in his own 
court. Du Cange. 


OUTFIT. 1. An allowance made by 
the United States government to one of its 
diplomatic representafives going abroad, for 
the expense of his equipment. 

2. This term, in its original use, as applying 
to ships, embraced those objects connected 
with a ship which were necessary for the 
sailing of her, and without which she would 
not in fact be vavigable. But in ships en- 
gaged in whaling voyages the word haa ac- 
quired a@ much more extended signification, 
9 Mete. (Mass.) 364. 


OUTHEST, or OUTHOM. A calling 
men out to the army by sound of horn. 
Jacob. 


OUTHOUSE. Any house necessary for 
the purposes of life, in which the owner does 


859 


| itations, 


OUTSTANDING 


not make his constant or principal residence, 
is an outhouse. 2 Root, 516. 

A smaller or subordinate building connected 
with a dwelling, usually detached from it and 
standing ata little distance from lt, not intended 
for persons to live in, but to serve some purpose of 
convenience or necessity; as a barn, a dairy, a tool- 
house, and the like. 

OUTLAND. The Saxon thanes divided 
their hereditary lands into inland, such as 
lay nearest their dwelling, which they kept 
to their own use, and outland, which lay be- 
yond the demesnes, and was granted out to 
tenants, at the will of the lord, like copyhold 
estates. This outland they subdivided into 
two parts. One part they disposed among 
those who attended their persons, called 
“theodans.” or lesser thanes; the other part 
they allotted to their husbandmen, or churls. 
Jacob. 


OUTLAW. In English law. One who 
is put out of the protection or aid of the law. 


OUTLAWED, when applied to a promis- 
sory note, means barred by the statute of lim- 
37 Me. 389. 


OUTLAWRY. In English law. A pro- 
cess by which a defendant or person in con- 
tempt on a civil or criminal process was de- 
clared an outlaw. If for treason or felony, 
it amounted to conviction and attainder. 
Stim. Law Gloss. 


OUTPARTEBRBS. 
Cowell. 


OUTPUTERS, Such as set watches for 
the robbing any manor-house. Cowell. 


OUTRAGE. Injurious violence, or, in 
general, any species of serious wrong offered 
to the person, feelings, or rights of another. 
See 44 Iowa, 314. 


OUTRIDERS. In Englishlaw. Bailiffs- 
errant employed by sheriffs or their deputies 
to ride to the extremities of their counties or 
hundreds to summon men to the county or 
hundred court. Wharton. 


OUTROPER. A person to whom the 
business of selling by auction was confined 
by statute. 2 H. Bl. 557. 


OUTSETTER. In Scotch law, 
lisher. 3 How. State Tr. 603. 


CUTSTANDING, 1. Remaining un- 
discharged; unpaid; uncollected; as an out- 
standing debt. ‘ 

2. Existing as an adverse claim or preten- 
sion; not united with, or merged in, the title 
or claim of the party; as an outstanding title, 


Stealers of exattle. 


Pub- 


OUTSTANDING TERM 


OUTSTANDING TERM. A term in 
gross at law, which, in equity, muy be made 
attendant upon the inherilance, either by ex- 
press declaration or by implication. 


OUTSUCKEN MULTURES. In Scotch 
law. Ont-town multures; multures, duties, 
or tolls paid by persons voluntarily grinding 
corn at any mill to which they are not thirled, 
or beund by tenure. 1 Forb. Inst. pt. 2, p. 
140. 


OUVERTURE DES SUCCESSIONS. 
In French law. The right of succession 
which arises to one upon the death, whether 
natural or civil, of another, 


OVELTY. In old Englishlaw. Equality. 


OVER. In conveyancing, the word 
“over” is used to denote a contingent limil- 
ation intended to take effect on the failure of 
a prior estate. Thus, in what is commonly 
called the “name and arms clause” in a will 
or settlement there is generally a proviso that 
if the devisee fails to comply with the condi- 
tion the estate is to go to some one else. 


This is a limitation or gift over. Wats. 
Comp. Eq. 1110; Sweet. 
OVERCYTED, or OVERCYHSED. 


Blount. 


OVERDRAW. To draw upon a person 
or a bank, by bills or checks, to an amount 
In excess of the funds remaining tothe draw- 
er'’s credit with the drawee, or to an amount 
greater than what is due. 

The term “overdraw” hae a definite and well- 
understood meaning. Money is drawn from the 
bank by him who draws the check, not by hir. who 
receives the money; and it is drawn upon the ac- 
count of the individual by whose check it is drawn, 
though it be paid to and for the benefit of another, 
No one can draw money from bank upon his own 
account, except by means of his own cheek or 
draft, nor cau he overdraw his account with the 
bank in any other manner. 2 N. J. Law, 475, 484. 


OVERDUE. A negotiable instrument 
or other evidence of debt is overdue when the 
day of its maturity is past and it remains un- 
paid. A vessel is said to be overdue when 
she has not reached her destination at the 
time when she might ordinarily have been 
expecied to arrive. 

OVERHAUL. To inquire into; to re- 
view; to disturb. “The merits of a judg- 


ment can never be overhauled by an original 
suit.” 2 EH. BI. 414. 


OVERHERNISSA. InSaxonlaw. Con- 
tiumacy or contempt of court. Leg. Athel. 
c. 25. 


Proved guilty or convicted. 


860 


OVERSEERS OF THE POOR 


OVERLIVE. To survive; to live longer 
than another. Finch, Law, b. 1, c. 3, no. 
58; 1 Leon. 1. 


OVERPLUS. What is left beyond a cer- 
tain amount; the residue; the remainder of 
a thing. 


OVERREACHING CLAUSE. In a 
resettlement, a clause which saves the pow- 
ers of sale and leasing annexed to the estate 
for life created by the original settlement, 
when it is desired to give the tenant for life 
the same estate and powers under the reset- 
tlement, The clause is so called because it 
provides that the resettlement shall be over: 
reached by the exercise of the old powers. 
If the resettlement were executed without a 
provision to this effect, the estate of the ten- 
ant for life and the annexed powers would be 
subject to any charges for portions, etc., cre- 
ated under the original settlement. 38 Dav, 
Conv. 489; Sweet. 


OVERRULE. Tosupersede; annul; re- 
ject by subsequent action or decision, A ju- 
divial decision is said to be overruled when a 
later decision, rendered by the same court or 
by a superior court in- the sams system, ex- 
presses a judgment upon the same question 
of law directly opposite to that which was 
before given, thereby depriving the earlier 
opinion of all authority as a precedent. The 
term is not properly applied to conflicting 
uecisions on the same point by co-ordinate or 
independent tribunals. 

In another sense, “overrule” is spoken of 
the action of a court in refusing to sustain, 
or recognize as sufficient, an objection made 
in the course of a trial, as to the introduc- 


| tion of particular evidence, ete. 


OVERSAMESSA. In old English law, 
A forfeiture for contempt or neglect in not 
pursuing a malefactor. 3 Inst. 116. 


OVERSEER. A superintendent or su- 
pervisor; a publie officer whose duties in- 
volve general superintendence of routine 
affairs. ; 


OVERSEERS OF HIGHWAYS. The 
name given, in some of the states, toa board 
of officers of a city, township, or county, 
whose special function is the construction 
and repair of the public roads or highways. 


OVERSEERS OF THE POOR,  Per- 
sons appointed or elected to take care of the 
poor with moneys furnished ta them hy the 
public authority. 


OVERSMAN 861 OYER AND TERMINER 
OVERSMAN. In Scotch law. An um- | enjoy and do with as he pleases, even to spoil or 


pire appointed by a submission to decide 
where two arbiters have differed in opinion, 
or be is named by the arbiters themselves, 
under powers given them by the submission. 
Bell. 


OVERT. Open; manifest; public; issu- 
ing in action, as distinguished from that 
Which rests merely in intention or design. 


OVERT ACT. In criminal law. An 
open, manifest act from which criminality 
may be implied, An open act, which must 
be manifestly proved. 3 Inst. 12. 


OVERT WORD. An open, plain word, 
not to be misunderstood. Cowell. 


OVERTURE, An opening; a proposal. 


OWELTY. Equality. This word is used 
in law in several compound plirases, aa fol- 
lows: 

1. Owelty of partition is a sum of money 
paid by one of two coparceners or co-tenants 
to the other, when a partition has been ef- 
fected between them, but, the land not be- 
ing susceptible of division into exactly equal 
shares, Buch payment is required to make 
the portions respeclively assigned to them of 
equal value. 

2. In the feudal law, when there is lord, 
mesne, and tenant, and the tenant holds the 
mesne by the same service that the mesne 


holds over the lord above him, this was called | 


“owe:ty of services.” Tomlins. 

3. Owelty of exchange is asum of mon- 
ey given, when two persons have exchanged 
lands, by the owner of the less valuable es- 
tate to the owner of the more valuable, to 
equalize the exehange. 


OWING. Something unpaid. <A debt, 
for example, is owing while it is unpaid, and 
whether it be due or not. 


OWLERS. In English law. Persons 
who carried wooi, ete., to the sea-side by 
night, in order that it might be shipped off 
contrary tolaw. Jacob. 


OWLING. InEnglish law, The offense 
of transporting wool or sheep out of theking- 
dom; so called from its being usually carried 
onin the night. 4 Bl Comm, 154, 


OWNER. The person in whom is vested 
the ownership, dominion, or tille of property; 
proprietor. 


He who has dominion of athing, real or personal, 
corporeal or tacorporeal, which he has aright to 


destroy it, as far as the law permits, unless he ba 
prevented by some agreement or covenant which 
restrains his right. Bouvier, 


OWNERSHIP. Thecomplete dominion, 
title, or proprietary right in a thing or claim. 
See PROPERTY. 

The ownership of a thing is the right of 
one or more persons to pussess and use it to 
the exclusion of others. In this Code, the 
thing of which there may be ownership is 
called “property.” Civil Code Cal. § 654. 

Ownership is the right by which a thing 
belongs to some one in particular, to the ex- 
clusion o2 all other persons. Civil Code La. 
art. 488. 

Ownership is divided into perfect and tmper- 
fect. Ownership is perfect when it is perpetual, 
and when the thing is unincumbered with any real 
right towards any other person than the owner, 
On the contrary, ownership is imperfect when it 
is to terminate at a certain time or on a condition, 
or if the thing which is the object of it, being an 
immovablo, is charged with any real right towards 
athird person; as a usufruct, use, or servitude, 
When an immovable is subject to a usufruct, the 
owuer of it is said to possess the naked ownership. 
Civil Code La. art. 490. 


OX¥FILD. A restitution anciently made 
by a hundred or county for any wrong done 
by one that was within thesame. Lamb. 
Arch, 125. 


OXGAWNG In old Englishlaw. As 
much land as an ox could till. Co. Litt. 5a. 
A measure of land of uncertain quantity. In 
Scotland, it consisted of thirteenacres. Spel- 
man. 


OYER. Inold practice. Hearing; the 
hearing a deed read, which a party snedon a 
bond, ete., might pray or demand, and it was 
then read to him by the other party; the en- 
try on the record being, “et ed legitur in hae 
verba,” (and itis read to him in these words.) 
Steph. Pi. 67, 68; 3 Bl. Comm. 299; 3 Salk. 
11: 

In modern practice. <A copy of a bond 
or specialty sued upon, given to tue opposite 
party, in lieu of the old practice of reading it. 


OYER AND TERMINER. A half 
French phrase applied in England to the as- 
sizes, which are so called from the cominis- 
sion of oyer and terminer directed to the 
judges, empowering them to “inquire, hear, 
und determine” all treasons, felonies, and 
misdemeanors. This commission is now is- 
sued regularly, but was formerly used enly 
on particular oveasions, as upon sudden out- 


OYER DE RECORD 862 OYEZ 


i rage o1 insurrection in any place. In the 
United States, the higher criminal] courts are 
called “courts of oyer and terminer.” Bur- 
rill. 


OYER DE RECORD. A petition mate 
in court that the judges, for better proof’s 


sake, will hear or look upon any record. 
Cowell. 


OYEZ. Hearye. A word used in courts 
by the public erier to command attention 
when a proclamation is about to be made. 
Commonly corrupted inte “O yes.”